Case Summary for May 12, 2005

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Case Summary for May 12, 2005

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

Thursday, May 12, 2005
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SC86568
John Beck v. Ann Fleming
St. Louis County
Enforcement of dissolution judgment pertaining to employee benefits

In June 1988, a court awarded John Beck and Ann Fleming a decree dissolving their marriage, incorporating into the decree the parties' marital settlement and separation agreement. The settlement agreement awarded Fleming 12.5 percent of the proceeds from the sale of stock options Beck received during the marriage as an employment benefit. Beck was to exercise the options in the future, resulting in periodic payments to Fleming from the proceeds on each exercise and Beck's subsequent sale of the stock. Beck exercised a portion of the options, realized net proceeds on the sale of the stock and made payments to Fleming. In December 2001, Fleming filed a motion to enforce the dissolution decree, seeking the remaining funds due from the proceeds of the stock option exercise. Beck moved to dismiss, alleging that because Fleming did not revive the judgment pursuant to section 516.350, RSMo, the judgment is deemed presumptively paid and is no longer enforceable. In April 2003, the family division commissioner recommended against Beck's motion to dismiss, and Beck sought a rehearing before the judge of the family division. In May 2003, the circuit court ordered the judgment returned to the commissioner for additional, specific recommendations and findings. In March 2004, the commissioner entered a finding that a conclusive presumption exists under section 516.350 that Beck paid his obligations under the judgment and, therefore, recommended dismissing Fleming's motion to enforce. The circuit court adopted and approved the commissioner's recommendations three days later. Fleming appeals.

Fleming argues the court misinterpreted the law by finding the dissolution judgment was presumed paid in June 1998 and failed to apply the exception in section 516.350(3). She contends the court did not adjudicate that the judgment had lapsed and, therefore, the judgment was not presumed paid pursuant to section 516.350(3). She asserts that the court failed to apply the statute's exception regarding judgments dividing employee benefits in connection with the dissolution of marriage. Fleming argues the circuit court also failed to follow this Court's ruling and analysis in Holt v. Holt, 635 S.W.2d 335 (Mo. 1982), regarding the distinctive nature of periodic and future payments. She contends the version of section 516.350 in existence when the action was filed contained the exception regarding judgments dividing employee benefits in connection with a dissolution of marriage. She asserts that the court's failure to apply a remedial statute to her action denies her constitutional right to due process of law.

Beck responds that the court properly dismissed Fleming's motion to enforce. He argues that, pursuant to section 516.350, the division of the marital property was presumed conclusively paid in June 1998, 10 years after the dissolution judgment was entered and more than three years before Fleming filed her motion to enforce. He contends the 2001 amendment to the statute, by its own terms, does not apply to resurrect a judgment already presumed paid before the amendment's effective date. He asserts that this Court should not interpret the prior version of section 516.350 to allow Fleming to bring her motion to enforce more than 10 years after the judgment was entered because the factors that led this Court to take a similar step in Holt are not present here. Beck further argues the 2001 amendment does not and cannot apply retroactively to resurrect a judgment that was extinguished three years before the effective date.

SC86530
State ex rel. Cooper Tire & Rubber Company v. The Honorable W. Stephen Nixon
Jackson County
Challenge to contempt judgment over discovery issue following settlement

In August 2000, Rodger and Thera Oleta Lavelock filed a personal injury suit against Cooper Tire & Rubber Company. In October 2003, the parties reached an agreement in principle to settle their dispute. In early 2004, the parties executed a confidential settlement agreement that, in part, required the Lavelocks to dismiss their lawsuit and release Cooper Tire from any claims, known or unknown, that they might have then or in the future and that were related to the subject matter of the lawsuit. In April 2004, pursuant to the settlement agreement, the Lavelocks' attorneys returned to Cooper Tire the confidential documents it had produced to them during the litigation. The same day, the Lavelocks filed a motion for protective order for preservation of the documents. At the time, they had not yet dismissed the lawsuit against Cooper Tire, which moved the court to enforce the settlement agreement. In June 2004, the court dismissed the case with prejudice. At the time, it imposed obligations on Cooper Tire that went beyond the requirements of the parties' settlement agreement. Specifically, the court required Cooper Tire to create and file with the court a detailed index of the confidential documents the company had produced in the Lavelock litigation. In July 2004, Cooper Tire paid the Lavelocks the monetary consideration set forth in the settlement agreement. It also asked the court to vacate the portion of its judgment pertaining to obligations imposed beyond the terms of the settlement agreement. At the same time, the Lavelocks asked the court to find Cooper Tire in contempt for failing to file the index of confidential documents. Following a November 2004 hearing, the court in December 2004 held Cooper Tire to be in direct contempt of the court and assessed a $1,000 per day sanction against the company, payable to the circuit court administrator, until Cooper Tire filed the index. Cooper Tire seeks relief from this Court.

Cooper Tire argues the December 2004 contempt judgment is an order of criminal contempt because it imposes a per diem fine payable to the circuit court administrator and is based on alleged statements by Cooper Tire's counsel, allegedly made in open court in defiance of the court's authority, making it punitive in nature. Cooper Tire contends an order of criminal contempt may be reviewed only by a writ of prohibition. Cooper Tire asserts that it is entitled to an order prohibiting the circuit court from enforcing the contempt judgment because it requires Cooper Tire to create and file an index of confidential documents in which the Lavelocks have no interest. It argues the contempt judgment is a misplaced attempt to vindicate the court's authority and does not benefit any party in the litigation. Cooper Tire contends the evidence in the record does not support the entry of a contempt judgment. It asserts that record reveals no statement by Cooper Tire's counsel that the company did not intend to comply with the court's order and that the company was not defying the court's authority by not filing an index of its confidential documents. Cooper Tire argues the court lacked subject matter jurisdiction to enter its June 2004 judgment ordering the company to create and file an index of its confidential documents. It contends that the parties had settled the underlying lawsuit and that the judgment imposed obligations on Cooper Tire that were contrary to the terms of the settlement agreement. It asserts that the Lavelocks had no post-settlement interest in the confidential documents and no standing to seek relief relating to the company's production of its confidential documents. Cooper Tire argues that, because the June 2004 was made without jurisdiction, it was void, and because it was void, the court's subsequent order finding it in contempt of the June 2004 order likewise is void.

The Lavelocks respond that Cooper Tire is not entitled to an order prohibiting the circuit court from enforcing the contempt judgment. They argue that because the contempt judgment imposes a per diem fine designed to coerce compliance with the previous final judgment, it involves civil contempt and, therefore, is appealable. They contend that the evidence supports the contempt judgment and that Cooper Tire currently is appealing it. They assert the court had subject matter jurisdiction to require Cooper Tire to file an index because it had subject matter jurisdiction over the underlying personal injury action and the enforcement of the agreement settling that action. The Lavelocks respond that the June 2004 final judgment and December 2004 contempt judgment, therefore, are not void. They argue they had an interest in the confidential documents and the index of those documents. They contend a writ of prohibition is not available under Rule 84.22 because Cooper Tire currently is appealing the final judgment and because the contempt judgment is collateral to the appeal of the final judgment.

SC85955
State of Missouri v. Mark Anthony Gill
New Madrid County
Appeal of murder conviction and death sentence

In the summer of 2002, Mark Gill moved in with Ralph Lee Lape, Jr., at Lape's property near Fruitland, Missouri, in Cape Girardeau County. An attorney who had represented both of them before arranged for Gill to move in because Lape's property was near Gill's job. In July 2002, Lape disappeared. Ultimately, law enforcement officers stopped Gill and his girlfriend in New Mexico after learning that Lape's automated teller machine card had been used there. Following his return to Missouri, Gill told highway patrol officers in a second statement that after he and his cousin had learned that Lape had a large amount of money, they devised a plan to steal the money. Gill told officers he and his cousin kidnapped Lape from his home, took his wallet, drove him to an adjoining county, obtained his personal identification number for his ATM card. He told them that Lape had been shot in the head and buried. Gill told officers he and his cousin subsequently transferred a large amount of money from one of Lape's accounts to Lape's checking account, where they could access the money with the ATM card. The state charged Gill with first-degree murder, kidnapping, armed criminal action, first-degree robbery and first-degree tampering for his part of the crimes against Lape. The jury found Gill guilty as charged and recommended that he be sentenced to consecutive terms of death for the murder charge, life for the robbery charge, 30 years for the armed criminal action charge, 15 years for the kidnapping charge and seven years for the tampering charge. The court sentenced Gill accordingly, and he appeals.

Gill argues the verdict directors for the murder charge did not follow the notes on use, improperly attributed the "conduct element" of shooting Lape to either Gill or his cousin, and improperly instructed the jury that the two acted together. He contends that the evidence showed that his cousin alone shot Lape and that there was no evidence Gill shot Lape. He asserts that the verdict directors prejudiced him at the guilt phase and that this prejudice tainted the penalty phase as well. Gill argues the verdict director for armed criminal action failed to follow the notes on use with regard to accomplice liability and allowed the jury to believe he had shot and killed Lape despite the lack of evidence to support that finding. Gill contends the prosecutor's statements during jury selection were improper by attempting to instruct the jury on the law of accomplice liability. He asserts the court improperly instructed the jury as to two statutory aggravating factors that he argues were not supported by the evidence and should not have been submitted to the jury. Gill contends the court failed to instruct the jury that the state had the burden of proving beyond a reasonable doubt all facts that must be found to increase punishment to death, allowing the jury to be misled into thinking the state had no burden to prove the mitigating circumstances were insufficient to outweigh the aggravating circumstances. He asserts the court should have quashed the information or, in the alternative, precluded imposition of the death penalty because the information failed to charge any statutory aggravators. Gill argues the court erred in overruling his motion to strike for cause a particular juror who stated he preferred the death penalty because it would save money. Gill contends the court should have excluded certain victim impact testimony of Lape's sister and brother-in-law. He asserts their testimony had the effect of encouraging the jury to contrast the value of Lape's life with the value of Gill's life and to make its decision based on passion, prejudice and emotional impact.

The state responds that the court correctly submitted the murder verdict director allowing for the possibility that Gill shot Lape. It argues an instruction responsive to Gill's objection would have required the jurors to acquit Gill if they believed that Gill may have been the shooter. The state contends the court's armed criminal action verdict director was in proper form in all relevant aspects and properly referenced the rules of accomplice liability. The state asserts the prosecutor's description of accomplice liability during jury selection resulted in neither error nor prejudice to Gill. The state responds that Gill's objections to the statutory aggravator instruction do not support vacating his death sentence. It argues Gill does not argue that one of the aggravators was improper, and a death sentence should be upheld if at least one aggravator existed. The state contends this Court should not overrule its previous holdings that the murder-for-money aggravator applies to robberies. It asserts that the jury was free to conclude that Gill killed Lape for the depravity aggravator and that Gill failed to preserve his objection to the depravity aggravator. The state responds that the trial court followed this Court's precedent in properly refraining from requiring the jury to find beyond a reasonable doubt that evidence of aggravation was not outweighed by evidence of mitigation and that this Court should not overrule that precedent. The state argues the trial court properly refused to quash the information because this Court repeatedly has held that statutory aggravators need not be charged. It contends that this Court should not overturn Gill's sentence for the trial court's failure to strike, for cause, a prospective juror who never was empaneled and that the trial court properly refused to strike this prospective juror. The state further asserts that there was no error in the brief contextual comments made during the victim impact statements and that Gill failed to preserve his objections to certain claims of error in those statements.