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Case Summary for December 9, 2015


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, December 9, 2015

Janet S. Delana, Individually, and as the Wife of Decedent Tex C. Delana v. CED Sales Inc., d/b/a Odessa Gun & Pawn, Charles Doleshal, and Derrick Dady
Lafayette County
Challenge to constitutional validity and applicability of federal gun law to negligence claims in a wrongful death suit
Listen to the oral argument: SC95013.mp3SC95013.mp3
Delana was represented during arguments by Jonathan E. Lowy of the Brady Center to Prevent Gun Violence in Washington, D.C.; the gun shop was represented by Derek H. MacKay of Brown & James PC in Kansas City.

This case involves a dispute between a woman and the gun shop that sold her daughter the gun that the daughter used to kill her father in June 2012. According to Janet Delana, after she and her husband confiscated one gun from their daughter – who apparently intended to use it to harm herself – Delana alleges she called Odessa Gun & Pawn, from which the daughter had purchased the gun less than a month earlier. Delana said she told the store’s manager that her daughter was severely mentally ill, was under a psychiatrist’s care and was taking medication and asked that the store not sell the daughter a gun should the daughter return to purchase one. Two days later, the daughter arrived at the store and purchased a handgun from the store’s manager. The store alleges the sale was lawful. She went home, shot her father and then tried unsuccessfully to shoot herself. Her father died shortly thereafter. In the subsequent criminal proceeding against the daughter, the circuit court accepted the daughter’s plea of not guilty by reason of mental disease or defect and committed the daughter to the custody of the state’s department of mental health. In March 2014, Delana filed a wrongful death suit against the gun shop, its owner and its manager. She brought claims under state law for negligence and negligent entrustment against the store and for piercing the corporate veil against the store’s owner and manager. The defendants moved for summary judgment (judgment on the court filings, without a trial), alleging in part that a federal law – the “Protection of Lawful Commerce in Arms Act” – barred Delana’s negligence claims. Delana, in turn, argued the federal law did not require dismissal of her action and was unconstitutional. The United States intervened in the case to defend the constitutional validity of the federal law. The circuit court granted summary judgment in favor of the defendants, holding that the federal law barred Delana’s negligence claims, that the federal law is constitutional and that negligent entrustment liability did not apply to sellers under Missouri court precedent. Delana appeals.

This case presents a number of issues for the Court involving whether the circuit court’s grant of summary judgment was proper. One question involves whether Missouri state law permits a seller to be held liable for negligent entrustment in the sale of chattel (tangible and movable personal property), either generally or when that property could be considered a dangerous product. Another question involves whether a federal law protecting lawful commerce in arms plainly was intended to prohibit negligence claims such as the one Delana brought and how narrowly any ambiguities in the federal law must be read. Another issue involves challenges to the constitutional validity of the federal law, raising questions of whether this Court should decide the constitutional arguments or whether the case can be resolved on statutory grounds. One of the constitutional questions involves whether the federal law violates the 10th Amendment to the federal constitution by requiring that state legislatures impose civil liability on gun companies in certain cases but prohibiting state courts from hearing identical cases or whether the law is within Congress’ authority to regulate the interstate sale of firearms. Another related question is whether the federal law violates the due process clause of the Fifth Amendment to the federal constitution by depriving Delana of a cause of action without a substitute remedy or whether Congress prospectively changed a law to promote interstate commerce. A further question is whether Delana stated a claim for negligence and negligent entrustment against the gun store such that it would be improper to grant summary judgment to the store on her claim of piercing the corporate veil.

Several organizations filed briefs as friends of the Court. The National Coalition Against Domestic Violence, National Domestic Violence Hotline, National Indigenous Women’s Resource Center and National Latin@ Network: Casa de Esperanza raise constitutional concerns over the circuit court’s interpretation of the federal law and argue Delana’s negligence claim is not a qualified civil liability action that is preempted by the federal law. Instead, they argue her claim seeks relief for conduct the law is not intended to protect from civil liability and does not arise out of a criminal or unlawful misuse of a qualified product. The Major City Chiefs Association argues law enforcement organizations have a compelling interest in deterring dealers from selling firearms to persons who intend to or are reasonably likely to use them to harm others. The association argues that the gun store here is part of a small group of dealers whose negligence endangers the public and law enforcement; that existing laws permit the type of negligence claims Delana brought; or, alternatively, that her negligent entrustment claim should stand under the facts of this case. The National Shooting Sports Foundation Inc. argues that this case can be resolved under the federal law, which it argues preempts negligence claims. It argues the law neither requires a criminal conviction nor precludes an acquittal for mental illness before third-party conduct is considered criminal misuse. It further argues the law does not require that criminal or unlawful misuse be the singular cause of a plaintiff’s harm.



Harry Fischer v. Director of Revenue
Cole County
Liability for additions, interest and penalties applied to prior tax obligation
Listen to the oral argument: SC95055.mp3SC95055.mp3
Fischer, of Elkader, Iowa, represented himself during arguments; the director was represented by Linda Lemke of the attorney general’s office in Jefferson City.

Harry Fischer sought an extension to August 2005 in which to file his 2004 tax return, paying estimated taxes at the time of his request. He did not file his 2004 return until February 2007, listing the prior payment as an overpayment to apply to his 2005 tax liability. He did not file either his 2005 or 2006 tax return until March 2009. The director of revenue calculated and applied additions and interest to the tax owed for those two years, subtracting the payment for 2004 and crediting the balance to Fischer as of the date on which he filed the two returns. Fischer did not file his 2007 return until June 2011 but included a payment at that time. The director determined Fischer’s tax obligation for the year, then calculated and applied additions, interest and penalties due to the late filing, subtracted the payment Fischer had made and the balance owed to him from his prior tax returns, and sent Fischer notice of the proposed changes in August 2011. He sent the director a payment in October 2011. The director determined it was less than Fischer owed, so the director sent him a notice of deficiency, which Fischer timely protested. In February 2013, the director issued a final decision finding Fischer still owed about $700 plus interest for his 2007 income tax liability. Fischer appealed to the administrative hearing commission, which in May 2015 found Fischer liable for approximately $730 plus statutory interest. Fischer appeals.

This case raises related issues for the Court: whether the director properly calculated Fischer’s 2007 tax obligations in light of overpayment credits, whether the director properly imposed additions and interest on Fischer’s 2007 tax obligation in accordance with requirements of state tax law, and the extent to which the director’s implementation of the state tax statutes must conform to federal tax procedures.


Miss Dianna's School of Dance Inc. v. Director of Revenue
Clay County
Liability for taxes on fees paid for dance classes and costumes
Listen to the oral argument: SC95102.mp3SC95102.mp3
The dance school was represented during arguments by Anthony L. Gosserand of Van Osdol PC in Kansas City; the director was represented by Evan J. Buchheim of the attorney general’s office in Jefferson City.

This case involves a dispute over the sales taxes a Kansas City dance school owes for 2010 and 2011. Miss Dianna’s School of Dance Inc. offers a range of dance classes for young children through adults. The school employs three dance instructors (including the school’s sole owner) and student teachers to teach the various dance classes. Students pay on a monthly basis for the classes they wish to attend and can purchase dance apparel from the school. In addition, the school’s students may attend dance competitions and conventions, which may necessitate the students wearing certain costumes. The school contends the money it collects for competitions, costumes and conventions immediately are paid as expenses owed to enter its students into competitions and conventions and to order their costumes. In 2010 and 2011, the school also offered exercise classes such as Zumba and bootcamp fitness, which were taught by an independent third-party licensed instructor who paid rent to the school to use the facility to teach the classes. Following a 2012 audit, the director of revenue assessed approximately $23,235 in sales tax against the school for 2010 and 2011. In determining the tax liability, the director concluded the dance school qualified as a place of amusement, entertainment or recreation under state law, making the school liable for paying taxes on fees paid to it. In calculating the tax, the director considered the dance school’s income from lessons, competitions and conventions, costumes, dance classes the owner teaches in the local school district, rent from the exercise instructors, retail sales of dance apparel, and miscellaneous income. The school appealed to the administrative hearing commission, which found that the school was a place of recreation and, therefore, was liable under state law for sales tax on its income, but only from the fees it charged for dance classes and the costumes it sold. The dance school appeals.

This appeal raises one primary issue for the Court: whether the dance school is a place of amusement, entertainment or recreation under state tax law such that the fees the dance school collected from its students for costumes and dance classes were taxable.


State of Missouri v. Luis Zetina-Torres
Saline County
Sufficiency of evidence to support drug trafficking conviction; challenge to jury instruction
Listen to the oral argument: SC95194.mp3SC95194.mp3
Zetina-Torres was represented during arguments by Margaret M. Johnston of the public defender’s office in Columbia; the state was represented by Dora A. Fichter of the attorney general’s office in Jefferson City.

The state highway patrol conducted a “ruse drug checkpoint” in the summer of 2010 along Interstate 70 in Saline County. The patrol placed flares, an empty patrol car with its lights activated and a sign advising drivers that a drug checkpoint was ahead when, in fact, no such checkpoint existed. The signs preceded an exit that offered no services for motorists. A black pickup truck passed the checkpoint sign and then exited the interstate, turning onto a side road and then a highway leading toward Marshall. A trooper followed the truck and, when it failed to slow down when the speed limit changed from 60 to 45 miles per hour, stopped the truck. Luis Zetina-Torres was driving, and another man was a passenger. According to the trooper, both men seemed nervous and avoided eye contact, the truck emitted a strong odor of air freshener, and upon questioning, the men gave inconsistent stories about what they were doing, where they were going and how long they had known each other. Zetina-Torres gave the trooper consent to search the truck. The trooper pulled back the bed liner and found a plastic bag containing nearly 440 grams of wet methamphetamine. The trooper arrested both men, and the state indicted Zetina-Torres for first-degree trafficking. A jury ultimately found Zetina-Torres guilty of the lesser-included offense of second-degree trafficking and recommended he serve 20 years in prison. The trial court entered judgment accordingly. Zetina-Torres appeals.

This case presents several issues for the Court. One is whether the state proved beyond a reasonable doubt that Zetina-Torres was guilty. Related to this issue is the question of whether the state presented sufficient evidence that Zetina-Torres possessed, knew of or was aware of the methamphetamine hidden under the truck’s bed liner or that he acted with or aided the truck’s passenger in committing second-degree trafficking. Another issue is whether the trial court plainly erred in submitting an instruction asking the jury to determine if the passenger possessed the methamphetamine and if Zetina-Torres acted with or aided the passenger in that offense.


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