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Case Summary for April 12, 2006 -- 9:30 a.m. docket


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 12, 2006

Rodney and Diane Glass v. First National Bank of St. Louis
St. Louis County
Challenge to deed of release statute and summary judgment

In December 1999, Rodney and Diane Glass executed a $525,000 deed of trust in favor of First National Bank of St. Louis, N.A., for the purchase of their Des Peres, Missouri, home. The Jefferson Bank's loan servicing center subsequently serviced the mortgage. In 2001, the Glasses began refinancing their home. The loan servicing center shows that the Glasses' mortgage loan was satisfied in June 2001, when it executed a deed of release for the Glasses' mortgage loan. The loan servicing center prepared and forwarded the Glasses' deed of release to the St. Louis County recorder of deeds' office in June or July 2001. The recorder of deeds' office did not record the deed of release until October 2001. In July or August 2001, Rodney Glass sent an undated, certified letter to First National bank, purportedly requesting a deed of release and enclosing a check for recording fees. In August 2001, the bank sent the Glasses their original note, marked "paid." The Glasses subsequently sued First National Bank, alleging causes of action for penalties and attorneys' fees under section 443.130, RSMo 2000. Both parties submitted motions for summary judgment. In December 2003, the court granted summary judgment in favor of the Glasses, awarding them $52,500. First National Bank appeals.

The bank argues the court erred in granting summary judgment in the Glasses' favor. It contends their demand letter failed to follow the requirements of section 443.130, RSMo 2000, because it did not reference the statute and did not ask that the deed of release be sent within 15 business days. The bank asserts that it fulfilled its obligations under the statute. It argues it executed the deed of release and forwarded it to the county recorder's office before receiving the demand letter but that, due to circumstances beyond the bank's control, the deed of release was not recorded within 15 business days. The bank contends the Glasses' use of section 443.130 was predatory and for personal financial gain. It asserts such a use is not within with statute's legislative intent of facilitating clear titles through the filing of deeds of release. The bank argues the Glasses have not suffered any prejudice from the failure to receive the deed of release, as they successfully refinanced their home on three subsequent occasions, each time attempting to collect the penalty provided within section 443.130. The bank contends the Glasses do not have standing to challenge compliance with the statute because the statute requires the deed of release to be delivered to the party making satisfaction in this case the lending institution subsequent to the bank and not the Glasses. The bank asserts that sections 443.130 and 443.060, RSMo 2000, are unconstitutional. It argues they violate the due process, equal protection, unlawful takings and excessive fines clauses of the federal and state constitutions.

The Glasses respond that the court properly granted summary judgment in their favor. They argue they were entitled to judgment as a matter of law and that there were no genuine disputes of material fact. The Glasses contend the bank did not deliver to them a deed of release within the statutorily prescribed period of 15 business days after receiving their request and tender of costs made pursuant to section 443.130. They assert that their demand letter complied with the requirements of the statute and that the bank did not fulfill its obligations under the statute. The Glasses respond that the fact that they successfully have refinanced their home three times does not change the fact that the bank did not comply with section 443.130 or that the bank, therefore, is liable for the statutory forfeiture amount. They argue they are the "persons making satisfaction" within the meaning of section 443.130. The Glasses contend that sections 443.060 and 443.130 are not unconstitutional. They assert that these sections are not unconstitutionally vague, do not violate substantive due process rights and do not violate equal protection rights. They further respond that section 443.130 does not impose an arbitrary punishment, does not constitute an unlawful taking and does not constitute an excessive fine.

The Missouri Bankers Association argues on behalf of the bank, as a friend of the Court, that the trial court's judgment should be reversed. It contends the trial court's judgment is inconsistent with section 443.130 and with the state and federal constitutions. It asserts that the Glasses are not entitled to relief under the statute.


State of Missouri v. Calvin Kevin Clark
St. Louis City
Challenge to admission of evidence of acquitted crimes during sentencing phase

In October 2002, a grand jury charged Calvin Clark with one count of first-degree assault, one count of armed criminal action and one count of first-degree robbery for shooting a man in March 2001 in the city of St. Louis and for attempting to steal from the man $1,500 in cash. Clark's criminal trial was bifurcated (divided) into a guilt phase and a sentencing phase. Following a three-day guilt-phase trial in February 2004, the jury found Clark guilty of these three charges. Four months later, during the penalty-phase trial, the state introduced evidence that previously had been offered in an earlier case in St. Louis city in which Clark was acquitted of first-degree assault and of a triple homicide. The state also presented testimony from witnesses who identified Clark as a killer in a separate case in St. Louis city in which Clark also was acquitted. The jury ultimately recommended that Clark be sentenced to consecutive prison terms of life for the assault conviction, 30 years for the armed criminal action conviction and 15 years for the attempted robbery conviction. Clark appeals.

Clark argues the trial court erred during the penalty phase when it allowed the state to present evidence of his prior acquittals for murder. He contends that, once the facts of those cases were determined by a final, valid judgment, they cannot be litigated again. He asserts that evidence of his prior acquittals could not be admitted during the guilt phase of his trial and that admitting this evidence during the penalty phase violates state and federal constitutional provisions prohibiting double jeopardy and requiring that he be convicted only by a competent jury of his peers. Clark argues the United States Supreme Court's holding in United States v. Watts, 519 U.S. 148 (1997), provides no authority for redefining an acquittal for the purposes of a bifurcated penalty phase jury trial.

The state responds that the trial court did not abuse its discretion in admitting during the penalty phase evidence of prior murders of which Clark was acquitted. It argues evidence of murders of which a defendant is acquitted is admissible during sentencing. The state contends that the United States Supreme Court's decision in Watts does apply to Clark's case regardless of whether he was sentenced by a judge or, as was the case here, by a jury. The state asserts that admission of the evidence of the prior murders of which Clark was acquitted did not violate his rights against double jeopardy because it was attempting to punish him only for the new crimes, not for the past murders.


Daniel R. Shipley v. Ronald Cates, et al.
Cole County
Validity of family planning appropriation bills, award of attorney fees and expenses

In its 1999 legislative session, the general assembly appropriated funds through House Bill No. 10, section 10.705, to the state's department of health for fiscal 2000 "[f]or the purpose of funding family planning services, pregnancy testing and follow-up services, provided that none of the funds appropriated herein may be expended to directly or indirectly abortion services or administrative expenses." Then, in its 2002 legislative session, the general assembly appropriated funds through House Bill No. 1110, section 10.710, for fiscal 2003 for the family planning program. Both appropriations contained additional restrictions, eligibility requirements and accounting procedures. The restrictions provided in part that an organization receiving funds under the appropriation may not "share the same or similar name [or administrative] expenses" with an independent affiliate that provides abortion services. For both fiscal years, the department issued invitations for bid for family planning contracts and then contracted with Planned Parenthood of the St. Louis Region and Planned Parenthood of Kansas and Mid-Missouri (collectively, Planned Parenthood) to provide family planning services. These Planned Parenthood organizations operate clinics in St. Louis, Kansas City and mid-Missouri and are affiliated with other separately incorporated Planned Parenthood corporations that provide abortion services. The appropriation bills do not define "share" or "same or similar name," but the department's invitations to bid do. The department's contracts define "share" as prohibiting "services, employees, or equipment" that are paid for by the family planning contractor on behalf of the abortion provider affiliate without reimbursement. The contracts refer to Missouri's corporation statutes for a determination of the meaning of "same or similar." In June 2002, Daniel Shipley, a Missouri resident and taxpayer, filed a lawsuit in Cole County circuit court challenging the department's authority to define "same or similar name" and "share" in the contract. He also challenged Planned Parenthood's eligibility to receive state appropriations for family planning services in fiscal 2000 and fiscal 2003. Shipley did not seek repayment for fiscal 2001 or fiscal 2002 because, due to court injunctions in earlier cases that this Court subsequently vacated, Planned Parenthood did not participate in the family planning program in those fiscal years. Following a December 2004 hearing, the trial court in May 2005 granted judgment to Shipley and ordered Planned Parenthood to return the funding it received in fiscal 2000 and fiscal 2003 approximately $650,000. In August 2005, the court amended its judgment to order that Shipley's attorney fees and litigation expenses be paid from the returned funds. The department and Planned Parenthood appeal.

The department argues the court erred in failing to declare unconstitutional the service provider eligibility restriction and administrative directives in the appropriations bills. It contends those restrictions and directives violate the rule that legislation of a general character may not be included within an appropriation bill. It asserts that the restrictions are of a general character because they amend and supplement existing substantive (non-appropriation) law, thereby exceeding the scope of an appropriations bill that the state constitution permits. The department argues that sections 10.705 and 10.710 of the respective appropriations bills impermissibly amend section 188.205, RSMo, relating to the use of public funds for abortion services, and section 351.110, relating to the naming of Missouri corporations. It further argues these sections enact new rules governing family planning service providers that participate in the state's family planning program and new rules establishing the details of the program itself. The department contends there is a longstanding rule prohibiting the general assembly from amending or enacting general laws in appropriations bills. It asserts that such bills only may contain appropriations and the "subjects and accounts for which monies are appropriated." The department argues the unconstitutional provisions of the applicable sections can be severed from the rest of the language in the appropriations bills. It contends the court erred in striking and invalidating the department's definitions of "same or similar name" and "share" in its contracts with family planning service providers. It asserts the definitions are entitled to deference because they are not defined in the statute and are ambiguous. It argues the department's director is charged with implementing the statute and with the responsibility for defining the terms. It contends the definitions are consistent with the rules of statutory construction because they are drawn from other statutes addressing similar problems and are consistent both with apparent legislative intent and with the need to construe the statute within constitutional bounds. The department asserts that the court erred in ordering that Shipley be paid attorney fees and litigation expenses from the funds Planned Parenthood was ordered to return to the state. The department argues that these returned funds are state funds and that neither attorney fees nor costs and expenses may be awarded against the state absent express statutory authority.

Planned Parenthood argues the court erred in finding that Shipley had standing to seek repayment. It contends that Missouri law only allows taxpayers standing to seek to enjoin illegal conduct. It asserts that this standing should not be extended to Shipley, who seeks repayment of funds the state already paid for services already rendered and who does not allege fraud. Planned Parenthood argues the court erred in ruling that the restrictions in the appropriations bills do not violate the Missouri constitution. It contends the restrictions do not set aside money for specified purposes; pursuant to article III, section 23, the sole permissible purpose of an appropriations bill is to set aside monies for specified purposes. It asserts that the titles of the appropriations bills are misleading because the restrictions contained in the bills do not appropriate money but rather establish complex legal requirements that create and amend substantive legislation. Planned Parenthood argues the court erred in finding that the department's definition of undefined terms to be illegal, that Planned Parenthood was not eligible for the program and that it should be enjoined from participating in the program. It contends the definitions of the director, who is charged with implementing the statute, are entitled to deference and should be sustained because the definitions are reasonably related to the statute's purpose of preventing state funds from subsidizing abortion services and are consistent with other statutes of a similar subject. Planned Parenthood asserts that the court should not have decided Shipley's claim that the restrictions do not violate the federal constitution. It argues this claim cannot be decided because Planned Parenthood never claimed the restrictions, as implemented, violated its constitutional rights. Rather, it contends, it conditionally reserved this claim pending the outcome of the challenge to the restrictions' implementation. Planned Parenthood asserts that the court erred in ordering it to repay funds it already received. It argues the department had legal authority to enter into the contracts, it was entitled to rely on the director's construction of the statutory terms, and it would be inequitable to require repayment. Planned Parenthood contends it is charged only with the duty of making sure the party contracting on behalf of the state is authorized to do so. It asserts it complied with all the contractual terms and provided all the services for which it was reimbursed.

Shipley responds the court correctly found he has standing as a taxpayer to challenge the illegal payment of state funds. He argues the court correctly found that the statutes codified from the sections in the appropriations bills do not violate article III, section 23 of the state constitution. He contends the sections do not create or amend substantive legislation but rather contain permissible conditions on the expenditure of state funds. Shipley asserts that statutes are presumed to be constitutional; that challenges pursuant to article III, section 23 are disfavored; and that the sections' eligibility conditions are constitutional restrictions specifying the purpose of the appropriations. He responds that the statutes do not amend section 188.205 or state policy and that they do not prevent public funds from being spent to perform abortions necessary to save a mother's life. He argues that they also do not include legislation of a general character and that the bills' titles do not violate the state constitution. Shipley contends that, if this Court finds the eligibility conditions to be unconstitutional, then it should rule the statutes invalid in their entirety. He asserts that severing only the eligibility conditions would contravene legislative intent. Shipley responds that the trial court correctly declared that Planned Parenthood did not qualify to receive state funds and that the director's definitions violated the plain language and intent of the appropriations statutes. He argues the court owed no deference to the department's definitions. He contends the court's interpretation of "similar name" and "share" was proper. He asserts that Planned Parenthood shares facilities, expenses, employee wages and salaries, and equipment and supplies with affiliated abortion providers. Shipley responds that the court's conclusions do not render the appropriations sections in violation of the federal constitution and that Planned Parenthood waived its argument that these conclusions violate the federal constitution. He argues that Planned Parenthood's receipt of state funds unlawfully gives the state's official stamp of approval to abortion providers. Shipley contends that Rule 87 permits a party to seek a declaration that a statute is constitutional and that this determination was necessary to the trial court's judgment. He asserts that this Court need not remand the case because Planned Parenthood waived any constitutional challenges it might have had. Shipley responds that the trial court properly ordered Planned Parenthood to repay the funds it received unlawfully. He argues that to hold otherwise would violate the state constitution and that the trial court found that it would be inequitable to allow Planned Parenthood to retain the funds. Shipley contends the court correctly allowed him to recover his out-of-pocket expenses. He asserts that the department directors waived the department's objection to the court's award of attorney fees and that attorney fees and costs have been awarded against Planned Parenthood, not the state of Missouri.


In Re: Patrick F. Andre
St. Louis
Attorney discipline

St. Louis lawyer Patrick Andre began working as trust counsel for Enterprise Bank and Trust in St. Louis in 2000. In 2002, Andre filed for personal bankruptcy but failed to disclose this fact on personal financial statements he submitted to the bank. Enterprise ultimately found out he had lied about the bankruptcy, and Andre resigned his job on July 31, 2004. His falsifications on the financial forms triggered an audit of the accounts over which he had exercised control. The audit revealed that, during a six month period ending in May 2004, Andre misappropriated between $15,000 and $16,000 from the Irene Rosen and the Coastal Trading trusts by taking cash entrusted to him for deposit in the trusts and by writing checks out of the accounts. Andre handled Rosen's financial affairs, paid her bills for her and arranged for her caregivers. Coastal Trading is a common trust fund set up by 19 different investors. The audit revealed that Andre stole between $6,000 and $7,000 from Rosen and between $8,000 and $9,000 from Coastal Trading. In August 2004, the bank confronted Andre with the audit information. He admitted to his former supervisors that he had misappropriated no more than $16,000, and he entered into a reimbursement agreement for that amount plus the amount of the bank's expenses incurred as a result of the misappropriation. In June 2005, Andre entered into a pretrial diversion agreement with the United States attorney's office placing him on probation for 18 months and prohibiting him from working in a federally insured depository institution. The chief disciplinary counsel charged Andre with violating Rules 4-8.4(b) (committing a criminal act reflecting adversely on his honesty, trustworthiness or fitness as a lawyer); 4-8.4(c) (engaging in dishonest, fraudulent, deceitful conduct or conduct involving misrepresentation); and 4-1.15(a) (requiring a lawyer to hold client property separately from his own). During an August 2005 disciplinary hearing, Andre admitted that his conduct violated Rules 4-8.4(b) and (c). The disciplinary panel found that Andre had violated each of the charged rules and recommended disbarment. Andre disagreed with this recommendation. The chief disciplinary counsel seeks to disbar Andre.

The chief disciplinary counsel argues this Court should disbar Andre because he converted client funds, misappropriating approximately $16,000 from two trusts over which he served as a fiduciary. She contends that, although Andre was diagnosed with attention deficit/hyperactivity disorder (ADHD) since being charged with this disciplinary action, he has not sought treatment through counseling or medication and has not been rehabilitated. She asserts, therefore, that evidence of Andre's diagnosis should not be considered in mitigation of discipline.

Andre responds that suspension rather than disbarment is the appropriate discipline because of certain mitigating circumstances. He argues he made prompt restitution, has not been disciplined significantly in the past, cooperated with the bank and the disciplinary authorities and shows contrition. He contends he has suffered from the imposition of other sanctions through the United States attorney's office. He asserts that he suffers from ADHD, that he financially has been unable to afford therapy. He further asserts that The Missouri Bar's Lawyers' Assistance Plan (MOLAP) chairman indicated that MOLAP, which generally is directed toward treatment for substance abuse, clinical depression and family counseling, could structure a plan that is suitable to treat ADHD and that could be monitored. Andre responds that he should not be disciplined under Rule 4-1.15(a). He argues his misconduct did not occur "in connection with a representation," as required by that rule. He contends, rather, that his misappropriations took place exclusively in connection with non-legal work.


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