Case Summary for February 2-4, 1999

Your Missouri Courts - Supreme Court

Home

Case Summary for February 2-4, 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

FEBRUARY 2, 1999

81181
McCormack Baron Management Services, Inc. v. American Guarantee & Liability Insurance Company
St. Louis City
Insurance policy construction

After McCormack Baron Management Services, Inc. reported a security guard for insubordination, the guard was discharged. The guard alleged McCormack tortiously interfered with his contractual relationship with his employer. McCormack was insured by American Guarantee & Liability Insurance Corporation for certain "personal injury" claims, including defamation and disparagement. American Guarantee denied coverage, and McCormack sought to have coverage declared. The trial court found the guard did not allege McCormack falsely accused or disparaged him within the policy's coverage.

McCormack argues the lawsuit's complaint of tortious interference with contractual relations constitutes a claim for "personal injury" within the policy's meaning, because "personal injury" covers disparaging remarks and does not require the elements of the tort of disparagement such as falsity. McCormack argues the trial court's requiring falsity for covered "personal injuries" creates ambiguity and conflict because excluded "personal injuries" are those arising from making knowing falsehoods.

The insurance company argues that a claim of defamation or disparagement requires an allegation of a false statement, and the guard did not allege a falsity. Therefore, there is no "personal injury" claim under the policy's coverage. The insurance company also argues McCormack waived its argument in the trial court by not raising it; the trial court ruled that falsity--not knowledge of falsity--was required; and the ruling is supported by case law interpreting similar provisions.

81215
Scott A. Wood, et al. v. Centermark Properties, Inc.
St. Louis City and County
Duty to protect against third-party crime

On January 15, 1994, Barbara Wood was parking her car in the South County Center lot to go to work at Dillard's Department Store when she was car-jacked, abducted, and murdered--shot and thrown from a bridge. Family members Scott Wood, his brother, and his grandmother filed a wrongful death action against mall owner and manager Centermark Properties, Inc. The trial court entered summary judgment in favor of Centermark.

Plaintiffs contend: (1) Centermark owed a duty to exercise ordinary care in preventing criminal attacks under an exception to the general no duty rule, because of a history of violence and over sixty crimes on the premises in the last five years. (2) The landlord assumes a duty if it invites people to an area it represents to be secure and people rely on those representations. Centermark promised to provide security, was the only entity allowed to provide security, and compelled employees to park in remote places in the lot. Employees were afraid to park there and relied on Centermark for protection. (3) Ms. Wood is a third-party beneficiary of the lease agreement between Centermark and Dillard's. The contract required Centermark to provide security in common areas including the employee parking area. (4) A landlord must exercise ordinary care to make common areas reasonably safe for tenants and their invitees against foreseeable risks. (5) Centermark owed a duty to prevent criminal attacks because it enhanced the risk of danger by requiring employees to park in a remote employee parking area.

Centermark argues it should not be judged by hindsight as the law does not provide exact measures Centermark must take in given instances but only that it must use ordinary care. Centermark argues: (1) It had no duty to protect Ms. Wood from a third-party criminal assault by unknown assailants. Previous crimes were not sufficiently violent or numerous or similar to the present crimes. No previous crimes involved carjackings, abductions, murders, or serious bodily harm in the parking lot. (2) Centermark did not assume a duty to protect Ms. Wood. A landowner that provides a security program and guards does not assume the duty to protect its invitees from crime. (3) Ms. Wood had no enforceable rights under Dillard's lease with Centermark because she was neither a donee nor a creditor beneficiary under the agreement. (4) A landowner has no generalized duty to make common areas safe from foreseeable dangers from the threat of crime. (5) Centermark had no duty under the "enhanced risk" theory. The condition of danger on Centermark's lots was no greater than on the street or surrounding neighborhood.

Missouri Growth Association (MGA), Missouri Retailers Association (MRA), and Associated Industries of Missouri (AIM) filed an amici curiae brief. MGA members include commercial real estate owners, developers, and property managers. MRA represents about 3,000 retail outlets to keep them informed. AIM is a 1,500-member business and industry association. They argue Missouri's public policy would be advanced by refusing to create a general legal duty to protect another from third-party crimes. Creating such a duty would: (1) relieve the state of its duty to protect its citizens; (2) relieve criminals of culpability for their crimes; (3) offer no objective standards for owners to determine the adequacy of protection; (4) be the legislature's, not court's, function; (5) cause small businesses to suffer economically; and (6) result in the downfall of urban business.

81218
Sarah Ousley v. Kathy Casada
Taney County
Ejectment/possession of real estate

Charles and Sarah Ousley bought a farm and began raising cattle. When Charles became ill, Kathy Casada (his daughter and Sarah's step-daughter) moved to the Ousleys' property and assisted. After Charles' death, Sarah sought a declaratory judgment that she owned certain cattle, Kathy's ejectment from the property, and $3,950.00. Kathy sought the cattle, five acres, and, if denied the five acres, the cost of improvements to it. The trial court ruled in Sarah's favor.

Kathy contends: (1) The judgment is unsupported by the evidence or against the weight of the evidence. Sarah's version of the agreement to give Kathy land is self-contradictory. Sarah's installing a well, etc., demonstrated she believed Kathy's possession was permanent. Kathy's evidence and witnesses established her title to the land. (2) A document written by Charles setting forth the agreement should have been admitted. It was admissible under section 491.010; it's reference to “adverse party” means adverse litigant. (3) Kathy is a debtor in a Chapter 13 bankruptcy, and the bankruptcy court did not lift the stay to permit a money judgment against Kathy.

Sarah argues: (1) The evidence supports the judgment. Sarah consistently testified Kathy was not promised title. Sarah's spending money to make improvements is consistent with her continued ownership, and Kathy's trailer was on concrete blocks and mobile. Charles' will did not mention the agreement and left all to Sarah. (2) The document alleged to be Charles' was properly excluded, based on an insufficient foundation. It was not signed by both tenants-by-the-entirety so was not binding. Sarah was not adverse to Charles, and her testimony did not render the document admissible under the dead man statute. (3) The bankruptcy court's automatic stay was lifted. Kathy voluntarily defended the claim and is, therefore, estopped from relying on a stay.

SUPREME COURT OF MISSOURI

FEBRUARY 3, 1999

81107
In re: David E. Fischer
Jackson County
Attorney discipline

Attorney David E. Fischer failed to communicate with his client, failed to respond to demands for information by the circuit bar committee, and engaged in the unauthorized practice of law for several years while delinquent in paying his annual enrollment fees and in complying with his continuing legal education requirements. The chief disciplinary counsel stipulated with Fischer to discipline by reprimand, but the disciplinary hearing panel recommended suspension.

Fischer argues the disciplinary hearing panel erred in questioning him and disciplinary counsel without making a record as Rule 5.15(c) requires. Accordingly, the case should be remanded, or the Court should impose the stipulated sanction of reprimand.

80825
State of Missouri v. Bernard Rhodes
Boone County
First degree murder, death; first degree robbery, life

Bernard Rhodes entered an elderly woman's home through an open door on a warm day in Boone County, July 16, 1997. He injured her and burglarized her home, and because she continued to call for help, he tied her up and covered her head with a bag, suffocating her. He was convicted and sentenced to death.

Rhodes contends (1) the prosecuting attorney engaged in improper argument, including for example referring to facts not in evidence, personalizing the case to the jury, and asking them to imagine themselves as the victim.

Rhodes also contends: (2) The trial court should have allowed testimony about Rhodes’ ability to exist in prison without posing a danger. (3) Autopsy photographs of the victim's head were gruesome and should have been excluded. (4) Evidence relating to Rhodes’ drug use should have been admitted and instructed on. (5) A potential juror was improperly excused for cause even though her death penalty views would not impair her ability to follow the law. (6) The state should not have been permitted to introduce evidence about the amount of pain the victim may have felt. It was speculative, inflammatory, and invaded the province of the jury. (7) The state should not have been permitted to introduce evidence of non-statutory aggravating circumstances. His prior convictions that were not aggravating circumstances should not have been admitted. To the extent section 565.032 lets the jury consider evidence without instruction, such as the prior convictions, it violates due process. (8) The evidence was insufficient to show first degree robbery because Rhodes did not contemplate taking the victim’s car until after she was dead. (9) There was insufficient evidence of deliberation. Rhodes entered the house to steal to get drugs, not to kill. (10) Certain victim impact evidence was improperly considered. (11) The jury received duplicate aggravating circumstances. The evidence does not support the aggravating circumstance that the victim was killed during the perpetration of a robbery. The aggravating circumstance that the murder involved depravity of mind was unconstitutionally vague and over-broad. (12) Rhodes’ sentence is disproportionate and was imposed because of passion, prejudice, and other arbitrary factors. The Court refuses to engage in meaningful proportionality review.

The state contends: (1) The prosecutor's arguments were proper and did not result in manifest injustice or prejudice. (2) The court properly excluded testimony predicting what type of prisoner Rhodes would be. The witness was not a psychology or psychiatry expert and, therefore, lacked a basis for such testimony. (3) The autopsy photos were admissible. They showed the nature and location of the wounds and helped the jury understand the examiner's testimony. (4) A witness's testimony about Rhodes' drug use was properly excluded because it was offered for the impermissible purpose of negating Rhodes' mental state. Also, the witness could not testify Rhodes was on drugs at the time. The related instruction followed the model instruction and correctly stated the law. (5) The potential juror was properly stricken for cause because, taken as a whole, her responses to questions showed she was impaired in her ability to follow the law and instructions. (6) The expert's testimony of the pain the victim experienced was permissible and aided the jurors. While jurors may generally know injuries would be painful, they would not know the magnitude. (7) The court properly instructed on aggravating and mitigating evidence and properly admitted Rhodes' prior convictions. Rhodes waived a claim of error, and aggravating evidence need not be instructed on to be admissible. (8) The evidence supported first degree robbery. Rhodes entered the home and restrained and killed the victim in order to steal something and did steal her car. (9) The evidence showed Rhodes killed after deliberation. (10) The victim impact evidence was legally relevant, showing the victim's life and the effect of her murder on family. The jury never saw the pre-sentence investigation, and the judge can distinguish proper and improper material. (11) The aggravating circumstances are constitutional, supported by the record, and cannot be improperly duplicative. (12) The Court should affirm the death sentence under its independent statutory review.

No cases are scheduled for oral argument on February 4, 1999.