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Case Summary for December 10, 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 a.m. Thursday, December 10, 2015

State ex rel. Heart of America Council, Boy Scouts of America and Boy Scouts of America v. The Honorable Charles H. McKenzie
Jackson County
Whether claims of sexual abuse in the 1990s and filed in 2011 may proceed to trial
Listen to the oral argument: SC94942.mp3SC94942.mp3
The Boy Scouts were represented during arguments by Gerard T. Noce of HeplerBroom LLC in St. Louis; Doe was represented by Randall L. Rhodes of Douthit Frets Rouse Gentile & Rhodes LLC in Leawood, Kansas.

The underlying case involves a lawsuit filed by a man known as “John Doe” against Boy Scouts of America and Heart of America Council, Boy Scouts of America (collectively, Boy Scouts) and Scott Alan Bradshaw. The suit alleges that Bradshaw – a former scoutmaster and adult volunteer – sexually abused and battered Doe, then a boy scout, from 1992, when Doe was about 12 years old, through 1997, when he was about 18 years old. The suit further alleges that the Boy Scouts are liable for Bradshaw’s conduct under several legal theories, including alleged liability under section 537.046, RSMo (which relates to childhood sexual abuse). Doe filed suit in April 2011, shortly before his 31st birthday. Bradshaw filed his answer in October 2011; in January 2012, the circuit court granted the Boy Scouts leave to file their answers out of time. Upon the court’s order, they filed amended answers two months later. The Boy Scouts subsequently filed motions for summary judgment (judgment on the court filings, without a trial), arguing Doe’s claims were time-barred by applicable statutes of limitations. They also argued they could not be held liable for Bradshaw’s alleged abuse of Doe because they had no master-servant relationship with Bradshaw and his alleged acts were outside the scope of any purported employment relationship. They further argued they could not be held liable because they had no control over Bradshaw’s acts and, therefore, his alleged abuse was not a natural incident of the Boy Scouts’ business. The circuit court overruled the Boy Scouts’ motions for summary judgment. They now ask this Court to issue a permanent writ prohibiting the circuit court from enforcing its order. Upon petition by the Boy Scouts, this Court issued its preliminary writ prohibiting the circuit court from enforcing its order. The Boy Scouts now ask this Court to make its writ permanent.

This case presents several issues for the Court involving whether Doe’s claims are time-barred as a matter of law or whether the case should be allowed to proceed to trial. A preliminary question is whether prohibition is proper or whether relief could be granted through the appeals process after a trial and final judgment. Another question is whether the Boy Scouts waived or withdrew affirmative defenses they raised by improperly raising them, filing late answers or withdrawing issues when filing amended answers. Substantively, one question is whether the two- or five-year statute of limitations applies and began to run when Doe turned 21 and, if so, whether Doe should be permitted to proceed absent a claim of repressed memory or recent discovery of the alleged abuse or whether any actions by the Boy Scouts would have tolled (stopped) the statute of limitations from running. A related question is whether section 537.046, which sets a different time frame for filing suit in cases of childhood sexual abuse, applies to organizations or whether it applies only to persons. Further questions involve whether the Boy Scouts can be held liable for Bradford’s alleged conduct – whether they sufficiently controlled or directed his activities, whether they had any legal relationship with him that would give rise to liability, and whether his alleged abuse could be deemed a natural incident of the organizations’ business.


Edward L. Hoeber v. State of Missouri
Buchanan County
Alleged ineffectiveness of trial counsel in sodomy case
Listen to the oral argument: SC95079.mp3SC95079.mp3
Hoeber was represented during arguments by Laura G. Martin of the public defender’s office in Kansas City; the state was represented by Evan J. Buchheim of the attorney general’s office in Jefferson City.

The state charged Edward Hoeber with two counts of first-degree statutory sodomy. It alleged that, between July 1 and August 29, 2007, Hoeber had touched the genitals of the four-year-old daughter of his ex-girlfriend, with whom he lived in St. Joseph. Following a December 2009 trial, a jury found Hoeber guilty, and the trial court sentenced him, as a prior offender, to two consecutive terms of 40 years in prison. After his conviction was affirmed on appeal, Hoeber sought postconviction relief, alleging his trial counsel was ineffective. Following an evidentiary hearing, the court in September 2013 overruled Hoeber’s motion for relief. Hoeber appeals.

This case raises several questions for the court as to whether Hoeber’s trial counsel was ineffective, violating his state and federal constitutional rights and causing him prejudice (a reasonable probability that the trial’s result would have been different). One issue is whether Hoeber’s trial counsel should have objected to verdict-directing instructions that did not specify any particular incident of deviate sexual intercourse during the period for which the crime was charged, when the state presented evidence of multiple acts. Another issue is whether counsel should have presented, during the sentencing phase of trial, testimony from a mental health expert regarding mitigating evidence that Hoeber has a mental disability.


Macon County Emergency Services Board v. Macon County Commission
Macon County
Emergency services board’s claim of entitlement to proceeds of county use tax
Listen to the oral argument: SC95003.mp3SC95003.mp3
The emergency services board was represented during arguments by Deborah Neff of The Law Office of Deborah Neff LLC in Macon; the county commission was represented by Ivan L. Schraeder of Lowenbaum Law LLC in Clayton.

By operation of state law in 1995 and 1996, the Macon County emergency services board became independent of the county commission, although it was given no taxing authority and must rely on the commission to levy taxes for the board’s benefit. The commission previously had placed before county voters a sales tax of three-eighths of 1 percent to fund the board’s services, and the commission subsequently obtained voter approval to continue that tax. In November 2012, the commission proposed a 1-percent use tax, which county voters approved. The director of revenue subsequently collected the use taxes and distributed them to the county commission, which refused to share any part of the proceeds with the emergency services board, which the commission said it specifically had excluded from the use tax election. The board and its members ultimately sued the commission and its commissioners, seeking a judgment declaring that the board was entitled to a share of the use tax funds under section 144.757, RSMo, because it was receiving sales tax revenues at a rate of three-eighths of 1 percent when the use tax was approved in November 2012. The circuit court declined to enter such a judgment. The board appeals.

This case presents a primary issue for the Court: whether section 144.757, by its language or its legislative purpose, entitles the board to a proportional share of the use tax to ameliorate any loss of sales tax to the board caused by taxpayers purchasing from out-of-state vendors who charge no or a lower sales tax, or whether the county may exclude the board from use tax proceeds.

The Missouri Association of Counties filed a brief as a friend of the Court. It argues the board is not entitled to a proportionate share of the county use tax and that it is within the county commission’s discretion to determine the manner in which revenue from the tax is allocated.



Office Depot Inc. v. Director of Revenue
Cole County

At the request of counsel, the Court on November 2 removed this case from the docket for rescheduling at a later date. It since has been reset for argument January 12, 2016.

Jodie Nevils v. Group Health Plan Inc. and ACS Recovery Services Inc.
St. Louis County
Effect of new federal regulation on insurance company’s right to subrogation not otherwise available under Missouri law
Listen to the oral argument: SC93134.mp3SC93134.mp3
Nevils was represented during arguments by John Campbell of Campbell Law LLC in St. Louis; The insurance company was represented by Miguel A. Estrada of Gibson, Dunn & Crutcher LLP in Washington, D.C.

This is the second time these parties have come before this Court. Jodie Nevils, a federal employee, received medical treatment from numerous health care providers after he was injured in a November 2006 motor vehicle accident. His medical insurance coverage was provided by Group Health Plan Inc. (which now is known as Coventry Health Care of Missouri Inc., but will be referred to here as GHP) and was governed by the federal employee health benefits act. Nevils filed a personal injury suit against the driver who caused the accident, and the parties settled the case. GHP (and its agent, ACS Recovery Services Inc., which now is known as Xerox Recovery Services Inc. but will be referred to here as ACS) asserted a lien on Nevils’ claim for payments made pursuant to the insurance plan. Nevils paid nearly $6,600 to satisfy the lien. When GHP (and, later, ACS) sought subrogation and reimbursement pursuant to terms in the contract between GHP and the federal office of personnel management, Nevils brought suit, alleging Missouri law prohibits health insurers from subrogating their insureds’ personal injury claims. The circuit court granted summary judgment (judgment on the court filings, without a trial) in favor of GHP and ACS. Nevils ultimately appealed to this Court, which in 2014 in Nevils v. Group Health Plan Inc. (Nevils I) reversed the circuit court’s judgment, holding that the federal act did not preempt Missouri law barring subrogation of personal injury claims. While GHP’s petition for further review was pending in the United States Supreme Court, the office of personnel management issued a new regulation conceding the federal act’s express-preemption clause is ambiguous and adopting a preemption construction authorizing contractual provisions in carrier polices governed by the federal act to displace state law. The Supreme Court granted the petition for review, vacated this Court’s decision and remanded (sent back) the case to this Court for further consideration in light of the new regulation. This proceeding follows.

This case presents several questions for the Court. One is whether the new regulation alters this Court’s prior holding in Nevils I. A related issue is whether the office of personnel management improperly expanded the meaning of the preemption clause in the federal act contrary to congressional intent or whether the office reasonably determined that subrogation and reimbursement relate to benefits and benefit payments under the federal act. Another related issue is whether GHP’s policy can preempt Missouri law under the new regulation or whether the federal act itself preempts the Missouri law on which Nevils’ claim is based. Additional questions include whether Nevils forfeited any claim that GHP’s contract does not authorize reimbursement or whether the contract’s subrogation provision encompasses reimbursement. A further question is whether the federal regulation and federal act violate the supremacy clause.

The United States, which filed a brief as a friend of the Court, argues that the federal act preempts Missouri’s anti-subrogation law and that the office of personnel management’s new regulation is a reasonable interpretation of that act, noting a federal appeals court recently upheld the validity of the new regulation. The United States further notes the office of personnel management should be given deference to its interpretation of and rules implementing the federal act Congress authorized it to implement.


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