Case Summary for December 3, 2002

Your Missouri Courts - Supreme Court

Home

Case Summary for December 3, 2002

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.

ATTACHED TO THE FOLLOWING DOCKETED CASES ARE ELECTRONIC COPIES OF THE BRIEF(S) FILED BY THE PARTY OR PARTIES. THESE ELECTRONIC BRIEFS HAVE BEEN CONVERTED TO PDF BY THE COURT'S STAFF TO ACCOMMODATE VARIOUS WORD PROCESSORS. (If you do not already have the Acrobat reader, you may obtain it free at the Adobe website.) THE ATTACHMENTS MAY NOT REFLECT ALL BRIEFS FILED WITH THE COURT, THE COMPLETE ELECTRONIC FILING, OR THE FORMAT OF THE ORGINAL FILING. APPENDICES AND OTHER ATTACHMENTS GENERALLY WILL NOT BE POSTED HERE. (To determine whether or which briefs have been filed in a particular case, visit Case.net.) POSTING OF THE BRIEFS DOES NOT REFLECT ANY OPINION OF THE COURT ABOUT THE APPROPRIATENESS OF THE FORMAT OF THE BRIEFS OR THE MERITS OF A CASE. THESE POSTINGS ARE NOT OFFICIAL COURT RECORDS. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION.

DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

Tuesday, December 3, 2002

_________________________________________________________________________________________________________

SC84770
Carolyn Kenney v. Wal-Mart Stores, Inc.
Clay and Jackson counties
Defamation from publication of missing person poster

Lauren Kenney is the daughter of Angela Mueller and Christopher Kenney. Mueller has been the custodial parent since Lauren's birth, and although the parents did not have a formal visitation arrangement, Christopher Kenney typically kept Lauren one or two weekends each month in the home of his mother, Carolyn Kenney. In late August 1996, after Carolyn Kenney had picked up Lauren from Mueller, Christopher Kenney had his attorney file a petition in Clay County circuit court seeking to determine parentage and child custody of Lauren. A hearing was scheduled for four days later. Then, apparently out of fear that Mueller was planning to move with Lauren to Georgia, Christopher Kenney and his mother took Lauren to the Lake of the Ozarks. He told Mueller he would not return Lauren until the hearing, but he did not disclose where they were. Mueller looked for them and, when she could not find them, she contacted the Kansas City police department. Mueller and her family prepared and distributed a missing person poster indicating Lauren last had been seen with Carolyn Kenney. Someone placed one of the posters in a Missing Children's Network display case at a Wal-Mart store in Lee's Summit. When alerted to the poster's presence, a Wal-Mart assistant manager attempted to remove it to determine whether it was an approved poster of the National Center for Missing and Exploited Children, but she could not find the key to unlock the case. Ultimately, another manager unlocked the case and removed the poster. At the hearing, the court awarded Mueller full custody of Lauren, and Christopher Kenney returned Lauren to Mueller at the Clay County sheriff's department. Carolyn Kenney later sued Wal-Mart for defamation. Her case was tried before a jury in December 2000. The jury returned a verdict for Carolyn Kenney, awarding her $33,750 in actual damages and more than $390,000 in punitive damages. The court entered judgment in accordance with the jury verdict, and Wal-Mart appeals.

Wal-Mart argues the court erred in denying its motion for directed verdict and post-trial motion for judgment notwithstanding the verdict because Calrolyn Kenney failed to make a submissible defamation case. Wal-Mart contends there was insufficient evidence that the poster was defamatory, that Wal-Mart negligently published the poster in its store or unreasonably failed to remove it from the store, and that publication of the poster caused Carolyn Kenney to suffer actual damages. Wal-Mart asserts it proved that the poster was substantially true. It argues the poster was privileged under the fair report privilege. It contends Carolyn Kenney failed to make a submissible case of punitive damages because there was no evidence of actual malice. In the alternative, Wal-Mart contends that the court erred in submitting to the jury a verdict director that materially affected the merits of the case. It also asserts that the court committed plain error in failing to instruct the jury that Carolyn Kenney was required to prove the allegedly defamatory statements in the poster were false.

Carolyn Kenney responds that she made a submissible defamation case and that the court properly denied Wal-Mart's motions. She argues that there was sufficient evidence to support the jury's determination that the poster was defamatory, that Wal-Mart published the poster and was negligent in doing so, that the poster was not true, and that publication of the poster caused her to suffer actual damages. She contends the court properly held that the fair report privilege was not applicable in this case and that she overcame any potential application of the privilege by establishing actual malice. She asserts she made a submissible case for punitive damages because she proved actual malice. Carolyn Kenney responds that the verdict director was proper because the court's modifications to it were warranted by the facts in the case and did not result in any prejudice. She further argues the instruction properly stated the elements of a defamation claim against a private figure, and no manifest injustice or miscarriage of justice resulted from the court giving the instruction.

St. Louis Post-Dispatch, L.L.C., as amicus curiae, argues the court erred in giving Carolyn Kenney's verdict-directing libel instruction. It contends that instruction did not require the jury to find the poster false, even though falsity is an element a plaintiff must prove in any defamation case involving a publication about a matter of public concern. It asserts there is no legitimate basis for distinguishing between a media defendant and a non-media defendant such as Wal-Mart. It further argues that shifting the burden of proof depending on whether the defendant is a media or non-media defendant creates a double standard and unnecessarily complicates Missouri's approved instructions.

SC84523
Ford Motor Company, d/b/a American Road v. Director of Revenue
Jackson County
Statute of limitations for use tax

In June 1993, Ford Motor Company became a "direct pay" taxpayer, responsible for collecting and remitting use taxes to the Missouri department of revenue for consumers who buy Ford automobiles. Ford's Kansas City plant then turned over its tax reporting duties to Ford's world headquarters in Michigan. Beginning in 1996, the department audited Ford's sales and use tax payments for October 1992 through September 1995. The auditors determined that Ford failed to pay use tax during that time period on more than $17 million in purchases. With interest, Ford owed the department more than $1.03 million, which it paid without contest in February 1998. A tax consultant later hired by Ford found that Ford had paid use tax on exempt transactions during the October 1992 through September 1995 time period. As a result, in November 1999, Ford filed a claim seeking a refund of the $1.03 million, plus interest. The department director rejected the refund request because it was made more than three years after Ford filed the returns and paid the taxes. The administrative hearing commission reversed the director's decision, finding that Ford was entitled to a refund of the use tax. The director appeals.

The director argues Ford's use tax refund claim was barred by the three-year statute of limitations in section 144.190.2. She contends the three years are measured from the date of the tax overpayment on transactions for which the refund is sought, rather than from the date of tax payments on other transactions that were paid late, after an audit. She asserts the statute of limitations statute is a sovereign immunity waiver statute that should be construed narrowly and that it was not designed to reward taxpayers who pay their taxes late. The director argues her decision rejecting Ford's claim was not computed incorrectly nor was the result of a clerical error or mistake. She contends the department's failure to discover Ford's overpayments did not constitute a failure of consideration.

Ford responds that its refund claim was filed timely because it filed the claim within three years of the date it paid additional use taxes in response to the department's audit. It argues it is entitled to a refund because its overpayment resulted from a mistake by the department, for which there is not a statute of limitations. Ford contends the department failed to provide valid consideration for its waiver of the statute of limitations and that the department, therefore, could not impose a tax due.

SC84005
John J. Middleton v. State of Missouri
Adair and Harrison counties
Post-conviction relief in a death penalty case

In June 1995 in Ridgeway, Missouri, John Middleton shot Alfred Pinegar twice in the back and fatally in the head because he feared Pinegar would inform the police about Middleton's drug dealing. On a change of venue from Harrison County to Adair County, a jury convicted Middleton of first-degree murder and recommended a death sentence, which the court imposed. This Court affirmed his conviction and sentence. State v. Middleton, 995 S.W.2d 423 (Mo. banc 1999). Middleton sought post-conviction relief, which the motion court denied. He appeals.

Middleton argues he was prejudiced when the state failed to disclose a deal with a man arrested for drug offenses in exchange for his testimony against Middleton. He contends his attorney failed to strike for cause or exercise a peremptory challenge to a juror who testified she did not know whether she could consider mitigating evidence of substance abuse. He asserts his attorney was ineffective in not calling certain doctors to testify during the guilt phase of the trial that Middleton was psychotic at the time of the murder in support of his defense that he lacked the required mental state for first-degree murder. Middleton argues his attorney should have objected to a witness' testimony speculating that a phrase in a letter Middleton wrote constituted a threat that Middleton was placing a hit on the witness. In the alternative, he contends his attorney at least should have called a rebuttal witness to explain that the expression Middleton used in the letter actually meant he no longer intended to write any more letters to a particular person. He also asserts his appellate counsel should have raised on appeal his objections to the evidence surrounding the letter, particularly where the state did not disclose the letter until the day its witness testified about it. Middleton argues his trial attorney should have called family members and former employers to testify during the penalty phase about his impaired cognitive abilities and his work ethic. He contends his attorney also was ineffective in failing to introduce evidence during the penalty phase of his good behavior while imprisoned in Iowa. He asserts his attorney should have objected or requested appropriate relief in response to certain evidence, argument and instruction during the penalty phase. Middleton argues his attorney should have challenged the penalty phase jury instructions because they failed to properly guide the jury through the process of determining whether to impose the death penalty. He contends his appellate attorney was ineffective for failing to raise on direct appeal to this Court certain errors he believed the trial court made. In addition, he asserts Missouri's clemency process violates his constitutional rights because its application is arbitrary and capricious.

The state responds Middleton failed to establish that any deal existed between the state and the state's witness or that he was prejudiced from any nondisclosure. It argues Middleton did not prove his attorney acted unreasonably in not striking a juror, whose responses, when considered in their totality, established that she could consider his evidence in mitigation of punishment. The state contends Middleton's attorney was not ineffective in not calling the doctors during the guilt phase. It asserts that Middleton was adamant that he did not want an insanity defense presented, that calling the doctors would have resulted in evidence that Middleton had been convicted of two other murders, and their testimony would not have been admissible or persuasive. The state responds that neither Middleton's trial counsel nor his appellate counsel was ineffective in their actions regarding the evidence from the letter presented during the penalty phase. It argues that this evidence was admissible, that there was no evidence the trial attorney even would have known about the possible rebuttal witness, and that Middleton failed to show he was prejudiced by the late disclosure. The state contends Middleton's attorney used reasonable trial strategy in not calling certain family members and former employers as witnesses during the penalty phase because such testimony either would have been cumulative to other testimony or harmful to the defense theory. It asserts Middleton's attorney used reasonable trial strategy in not introducing evidence of his behavior while incarcerated in Iowa, particularly where some of his Iowa prison records would have been harmful to his case. The state argues Middleton's attorney was not ineffective in not objecting to certain evidence, argument and instructions in the penalty phase because Middleton has not shown that these actions were unreasonable or that these actions prejudiced him. It contends Middleton's attorney was proper in not exhaustively challenging the penalty phase instructions because this Court repeatedly has denied such claims, he was not prejudiced and there is no evidence the jury misunderstood the instructions. The state asserts Middleton's appellate counsel was not ineffective for not raising certain issues on direct appeal because counsel only raised those issues she believed had merit and because resolution of those issues would not have resulted in a reversal of Middleton's conviction or sentence. The state further responds that Middleton does not have standing to challenge the clemency process because he has not sought clemency and that such a claim is not proper in a post-conviction relief proceeding.