Case Summary for February 23-24, 1999

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Case Summary for February 23-24, 1999

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.

SUPREME COURT OF MISSOURI
CASE SUMMARIES
FEBRUARY 23-24, 1999, DOCKET

Tuesday, February 23, 1999

81214
Auto Alarm Supply Corporation v. Lou Fusz Motor Company
St. Louis County
Conversion, artisan and common law liens

A person purported to buy a 1990 Ford Mustang from Lou Fusz in St. Louis by writing a check. Lou Fusz allowed him to take the car but not the title until the check cleared. He took the car to Auto Alarm, who installed requested items. The check was bad, and Lou Fusz reported the car stolen. Police seized the car from Auto Alarm. Auto Alarm claimed a statutory (section 430.082) and common law artisan's lien for its work and requested the car's return. But Lou Fusz took the car and sold it. Auto Alarm sued Lou Fusz for conversion. The trial court directed a verdict for Lou Fusz.

Auto Alarm contends the person was in lawful possession of the car because Lou Fusz gave him possession. Because he was in lawful possession, Auto Alarm's statutory and common law liens properly arose. Auto Alarm argues the Uniform Commercial Code specifically speaks to when delivery is made in exchange for a dishonored check--that the risk of loss falls on the one induced to part with the property, thereby empowering the fraudfeasor to defraud others.

Lou Fusz argues the person was not in lawful possession because he would not get title until his checked cleared. Because he was not in lawful possession, the liens did not arise. Lou Fusz argues the UCC does not apply because Auto Alarm is not a good-faith purchaser for value under a transaction for purchase. Finally, equity and fairness preclude an action in conversion to enforce such a lien, in part because Auto Alarm requested the entire car whereas Auto Alarm could remove its parts and its work amounted to a fraction of the car's value.

81268
In re: James R. Derting, Jr.
Attorney discipline

Attorney James D. Derting, Jr., prepared a will for his friend that made several specific bequests and paid the remainder to the friend's cousin. The will named Derting as attorney for the estate and a different person as personal representative. An attached inventory list made gifts to Derting. After his friend's death, Derting sold items from the house and took a truck purporting to own half of it based on a gift affidavit (or affidavits) he supplied to the friend.

The disciplinary counsel submits Derting's license should be suspended because he violated rules of professional conduct by preparing documents that transferred property from his client to himself, converting client property, and charging excessive fees. A suspension is appropriate because he has been admonished for violating professional rules, and it comports with American Bar Association standards and the Court's guidelines.

80935
Joseph Treadway v. State of Missouri, Department of Natural Resources and Air Conservation Commission
St. Louis area, Cole County
Vehicle emissions inspection program

This case challenges the emission inspection program now in the St. Louis area. Federal law requires states and locales to assure air quality within their "geographic area". In areas that don't attain certain standards, for example because a large number of vehicle emissions create ozone and thus smog, like the Metropolitan St. Louis area, the Environmental Protection Agency requires heightened plans to assure air quality. To implement Federal Clean Air Act provisions, Missouri's sections 307.366 and 643.305 authorize a vehicle emissions inspection program for the St. Louis area and allow the Department of Natural Resources and Air Conservation Commission to implement it. Joseph Treadway argues the statutes constitute local and special laws. The case was transferred from St. Louis to Cole County. The Cole County court found in DNR's favor.

Treadway contends the statutes are special legislation condemned in Article III section 40(30) and 41 and a non-uniform state law applied to a county of one class, but not others within that class, prohibited by Article VI section 8. He argues the description of the area covered by the law, which is based on population, is limited for all time to St. Louis City and the Counties of Franklin, Jefferson, St. Charles and St. Louis. Although unique geographic features may justify local legislation, Treadway argues the court erred in concluding that smog was a geographic feature.

The state argues the emission testing statutes are general laws that comply with Article III. Those statutes are open-ended, using criteria based on population, classification, charter, and air quality that could allow counties to come and go from their scope over time. Those statutes are rationally related to a legitimate purpose; they cover all counties that need such testing. The state also argues that even if the statutes were local or special laws, they are substantially justified and thus comply with the Constitution. They respond to a problem geographically limited to the St. Louis ozone nonattainment area, and federal law requires Missouri to implement vehicle emissions testing and other measures in such areas. Finally, the state responds that the emissions testing statutes do not violate Article VI, section 8. Section 8 applies only to laws addressing classification, organization, and powers of counties, while the vehicle emissions testing laws do not address these subjects.

80964
Janet G. Linton, D.V.M., v. Missouri Veterinary Medical Board
Cole County
Veterinary licensing

Janet G. Linton, D.V.M., failed the veterinary licensing examination three times before passing on a fourth attempt. The Missouri Veterinary Medical Board denied her a license based on a three time limit on taking the exams under section 340.240.6 and state regulations. The Administrative Hearing Commission upheld the Board's decision. The circuit court reversed the decision and ordered Linton's license be issued.

The Board argues Linton's equal protection rights were not violated because no similar applicants were treated differently. The other applicants that Linton compares herself to did not fail the exam three times after the statute and regulations embodying the limit took effect. The Board also argues the three-time failure limit reasonably relates to the legitimate state interest in protecting citizens who seek veterinary care for their animals. Practicing veterinary medicine is not a fundamental right. As long as the legislature had a rational basis for the limit, which it does, then the statute is constitutional.

Linton argues her equal protection rights were violated because two others who failed the exams three times were given licenses. She also argues the limit was unconstitutional because there is no rational relationship to a legitimate government interest in the three time limit. Less harsh means would serve the state's interest.

Wednesday, February 25, 1999

81278
Anita Kay Williams and W.A. Williams, Her Husband; and, James G. Lafont, v. Sherman Kimes and Elaine Kimes, Husband and Wife, individually and as Trustees of the Kimes Family Trust dated No ember 27, 1990; and A.W. Kimes and Nina Kimes, Husband and Wife
Mississippi County
Foreclosure sale dispute

The Kimeses bought property at a foreclosure sale and made improvements to it. The person who sold the property at foreclosure only owned a life estate, and the Williams were to own the property upon that person's death. The Williams did not receive actual notice of the foreclosure sale. The Court, in a prior decision on this case, held the foreclosure was invalid and the Williams were entitled to immediate possession. The cause was remanded to the trial court for damages, credits, and other relief. The trial court ruled in favor of the Williams and against the Kimeses on the Kimeses' claim to recoup the foreclosure sales price (plus interest and less a credit for rental value of the property) and for an equitable lien on the property to secure payment.

The Kimeses argue the court misread the Supreme Court's prior opinion as holding only that the Kimeses purchased a life estate and ignoring the Court's primary determination that the foreclosure was invalid. The parties to a defective foreclosure sale must be restored to the same position as before the sale. Accordingly, the Kimeses should recover their purchase price. Otherwise, the Williams get a windfall--they get the property without the lien that the Kimeses paid off. There is no meaningful distinction between a partially invalid and a totally invalid foreclosure sale.

The Williams argue the Court did not wholly invalidate the foreclosure sale. Instead, the sale ended the interest of the life estate (seller) but not the contingent remaindermen (Williams). That is, the Kimeses bought a life estate, regardless of whether they wanted to buy more.

81222
State of Missouri, Department of Social Services, Division of Child Support Enforcement, et al. v. Ronald Dewayne Houston
Reynolds County
Child support

The Division of Child Support Enforcement proposed a modification to increase the child support obligations of Ronald Dewayne Houston. The Division informed him of his right to seek a hearing, but he did not seek a hearing. The Division then filed a proposed order, which was filed by default when Father did not respond, and ordered when the judge had not taken action after 45 days. Fifteen months later, Father moved to strike the order. In hearing the motion, the court retroactively applied Chastain v. Chastain and set aside the modified order because it had been entered without judicial approval. The court of appeals affirmed.

The Division argues the order was deemed approved under the default approval provision of section 454.496. Father failed to exhaust his administrative remedies since he never requested an administrative hearing or filed a petition for judicial review. Under the doctrines of waiver and estoppel, he waived any challenges to the order. The Division also argues Chastain should not have been applied retroactively. Invalidating orders entered under the default provisions, which people have relied on, would be unjust and produce hardships, promote wasteful litigation, and throw the child support system into chaos.

81258
Luster Reynolds v. State of Missouri
St. Louis County
Criminal; post-conviction counsel and disclosure of enhanced minimum prison term

Luster Reynolds was charged with the class C felony of first degree tampering for taking a woman's car without her consent. He entered an Alford plea and was found to be a prior and persistent offender. He was sentenced to six years in prison.

Reynolds argues (1) his counsel failed to review records and contact a witness who gave Reynolds permission to use the car, despite Reynolds providing the witness' beeper number to counsel. When Reynolds said he was satisfied with his counsel, and when he pled guilty, he did not understand that the permission negated guilty knowledge.

Reynolds also argues: (2) The court should have issued findings or conclusions on Reynolds' challenges to the failure of defense counsel and the court to inform him of the enhanced minimum prison term under section 558.019.2. (3)&(4) The court erred in denying a hearing on counsel and the court's failure to inform Reynolds that section 448.019.2 required him to serve an enhanced prison term of 80% of his sentence. The statute does not govern parole but is an immediate consequence of conviction. Without this information, his plea was not a knowing, voluntary, and intelligent waiver of his rights. (5) Reynold's due process rights required notice and proof of the prior convictions supporting the application of the minimum prison term. The accused has no opportunity to challenge the proof on which those findings rest.

The state contends: (1) Reynolds waived his claim that counsel failed to fulfill her basic duty because he did not raise it before the appellate court, per Supreme Court Rule 83.08(b). Reynolds was not entitled to a hearing in that counsel did not fail to file a timely amended motion. Reynolds claim is essentially for ineffective assistance of post-conviction counsel, which is unreviewable.

The state also contends: (2) The motion court was not required to make findings on Reynolds claim that counsel and the court did not inform him of the enhanced minimum prison term. It was not properly before the court--it was raised as a pro se claim incorporated by reference into the amended motion, violating rule 24.035(g). (3) Likewise, Reynolds did not properly raise the claims that counsel and the court failed to advise him of the enhanced minimum prison terms.

80545
State of Missouri v. Cecil Clayton
Barry County, Jasper County
First degree murder, armed criminal action; death for murder

Cecil Clayton argued with his girlfriend, parked in her mother's driveway, and shot an approaching Barry County police officer. After a change of venue, a Jasper County jury found Clayton guilty of first-degree murder and recommended the death sentence, which the court imposed.

Clayton argues: (1) The court erred in sustaining the state's motions and striking for cause two potential jurors whose voir dire responses indicated that even though they did not like the death penalty, they would be able to consider and vote for it.

Clayton also argues: (2) Evidence seized and testimony about Clayton's statements after his arrest should have been excluded because the police did not have probable cause to arrest Clayton for killing the police officer. When the police arrested Clayton, they only knew he had been at the scene. (3) The prosecutor misstated the law in the penalty phase closing statements. (4) Testimony that Clayton's girlfriend was afraid of him and of going home was irrelevant and prejudicial. It encouraged the jury to speculate and infer Clayton had threatened her or was dangerous. (5) Testimony of Clayton's cellmates should have been excluded because it was irrelevant, portrayed Clayton as disrespecting authority and wanting to injure law enforcement officials, and was the result of Clayton's improper arrest. (6) The trial court should have excluded a photograph of a prior assault victim of Clayton's because it was prejudicial and the state could prove the prior conviction through other evidence. (7) The death sentence is disproportionate. The evidence did not support the statutory mitigating circumstance. The Supreme Court should sentence Clayton to life because it is proportionate to Clayton's character, background, and the crime. (8) The court erred in submitting an instruction on a certain statutory aggravator. The evidence did not support it, and it conflicted with another statutory aggravator supported by the evidence. (9) The court should have given the jury an instruction that identified non-statutory mitigating evidence to consider. Prohibiting such instruction violates state and federal constitutions. (10) The prosecutor improperly criticized Clayton and his valid and legal defense during guilt phase closing argument, by, for example, calling defense expert testimony preposterous and voodoo.

The state contends: (1) The state properly struck for cause two potential jurors whose responses showed their views would prevent or substantially impair performing their duties as jurors. For instance, one stated she could not sign the death warrant.

The state also contends: (2) Evidence and statement after Clayton's arrest were properly admitted. His arrest was supported by probable cause. Even if the arrest was illegal, Clayton's statements and consent to search his truck were sufficiently a product of free will. The evidence would have been inevitably discovered. (3) The Court should not review the unpreserved claims of error in penalty phase closing arguments, as they are matters of trial strategy. The arguments were retaliatory to defense arguments. The jury was properly instructed. There is no reasonable probability that the result would have been different without the prosecutor's statements. (4) Testimony that Clayton's girlfriend was afraid did not definitely associate Clayton with another crime, and if it did, the evidence provided a coherent picture of the charged crime. (5) Clayton's cellmates' testimony was admissible. Various of his statements do not definitely associate him with other crimes. His statements show consciousness of guilt and motive, and they relate to the charged crime without resulting in manifest injustice. (6) The assault victim's photo was relevant to show the victim's condition following the assault, which was relevant to the individualized sentencing determination to be made in this case. (7) The death sentence was not improperly imposed, is supported by the jury's finding of aggravating circumstances, and is not disproportionate to those in similar cases considering the crime, the strength of the evidence, and the defendant. (8) The evidence supported the aggravating circumstance that Clayton challenges, and the jury properly found two other aggravating circumstances, which made Clayton death eligible. (9) There is no statutory or constitutional requirement that non-statutory mitigating evidence be listed in penalty phase instructions. (10) Clayton did not preserve claims of error in closing argument, and the Court should not review such trial strategy. The prosecutor's arguments did nothing improper and merely argued reasonable inferences from the evidence, commented on witness credibility, urge the jury to impose the severest punishment, and retaliated to an argument made by the defense.