Case Summary for September 12, 2012

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Case Summary for September 12, 2012

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.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9:30 a.m. Wednesday, Sept. 12, 2012

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SC92405
State ex rel. Airservices Australia v. The Honorable J. Dan Conklin
Cole County
Personal jurisdiction over foreign corporation in wrongful death case

Listen to the oral argument:

Airservices Australia was represented during arguments by J. Kent Lowry of Armstrong Teasdale LLP in St. Louis, and Lambert Leasing was represented by Kurt Shaeffer of Lathrop & Gage LLP in Jefferson City.

A plane crashed in May 2005 into a mountain ridge in Australia while attempting to land in inclement weather, killing all passengers and crew members. The crash was ruled as caused by pilot error. Airservices Australia had compiled the data used to create the aircraft navigation map on which the pilots in the crash had relied. Lambert Leasing had owned the plane two years prior to the crash and stored it at a hangar in Greene County. Ultimately, 54 persons filed 14 wrongful death claims against several entities including Lambert Leasing and the current owner of the plane, Partnership 818. The individuals alleged that the plane was defective and that the entities had collectively acted negligently. Lambert moved to dismiss because of other legal proceedings taking place in Australia, but the court overruled the motion. Lambert then filed an action against Airservices for contribution and indemnity. Airservices moved to dismiss for lack of personal jurisdiction in Missouri; the trial court overruled its motion as well. Airservices asks this Court for a writ (order) prohibiting the trial court from establishing personal jurisdiction over it.

Airservices argues the trial court should not have overruled its motion to dismiss for lack of personal jurisdiction. It contends it is not subject to personal jurisdiction in Missouri. Airservices asserts it did not engage in any acts subject to the long-arm statute, it has no contacts in Missouri, and allowing an action against it in Missouri would offend traditional notions of fair play and substantial justice. It argues the foreign sovereign immunities act does not create personal jurisdiction in Missouri. Airservices contends that to interpret the act to create such personal jurisdiction is contrary to the act’s plain meaning, conflicts with the act’s history, violates basic principles of statutory construction, conflicts with the United States Constitution, conflicts with the principles of federalism, and offends traditional notions of fair play and substantial justice.

Lambert Leasing responds that Airservices is subject to personal jurisdiction in Missouri. It contends the general long-arm statute is inapplicable here. Lambert asserts the act and federal precedent apply instead of the long-arm statute. It argues the plain language of the act states it exclusively controls cases involving foreign sovereigns. Lambert contends the act provides nationwide minimum contacts sufficient to give Missouri personal jurisdiction over Airservices. It asserts Airservices’ activities in the United States defeat any sovereign immunity arguments Airservices may make. Lambert argues applying section 506.500, RSMo, regarding personal jurisdiction in tandem with the act’s provisions for subject matter jurisdiction would ruin the uniformity of the act. It contends that Airservices’ federalism argument is unfounded and that the Court would frustrate the intent of the act by accepting the argument. Lambert asserts Airservices’ forum-shopping concerns are unsupported by the law.

SC92152
Roy Garozzo v. Missouri Department of Insurance, Financial Institutions & Professional Registration, Division of Finance
St. Louis County
Challenge to mortgage licensing act

Listen to the oral argument:

The Missouri Department of Insurance was represented during arguments by James R. McAdams, Deputy Director and General Counsel for the Department of Insurance in Jefferson City, and Garozzo was represented by Erwin O. Switzer of Greensfelder, Hemker & Gale PC in St. Louis.

Roy Garozzo pleaded guilty in December 2006 to the felony charge of possession of a controlled substance. In 2008, Congress passed the federal secure and fair enforcement mortgage licensing act, which Missouri’s legislature followed by passing section 443.713(2), RSMo. The new state law required a person to obtain a license to engage in the mortgage loan business and complied with the federal standard that a license would not be issued to anyone who had pleaded guilty to a felony within seven years of applying. Garozzo, who has been a mortgage loan originator since 1985, submitted his application for license to the state’s division of finance in July 2010 but was denied due to his guilty plea. Garozzo appealed his denial to the residential mortgage board, which upheld the division’s decision. Garozzo sought review in the circuit court, which found the law unconstitutional as applied to Garozzo and ordered the division to grant Garozzo a license. The division appeals.

The division argues section 443.713(2) does not violate Garozzo’s rights to substantive or procedural due process. It contends Garozzo did not possess a license – implied or otherwise – prior to this action because no such license existed prior to the new law taking effect. The division asserts Garozzo could not be deprived, in violation of his right to procedural due process, of a license that did not exist. It argues Garozzo’s right to substantive due process was not violated because there is no fundamental right for someone who pleads guilty to a felony to obtain state licensure for an occupation. The division contends the law is valid and not retrospective. It also asserts the law does not impair a vested right, create a new obligation, impose a new duty, or attach a new disability on Garozzo regarding past transactions or considerations because a license is not a vested right, Garozzo has no new obligations and he was unqualified when the licensing law went into effect. Finally, the division argues the law does not create an impermissible bill of attainder because the group classified by the law has the ability to qualify for a license in the future after the seven-year period passes.

Garozzo responds that the trial court correctly reversed the division’s denial of his application for a license. He contends section 443.713(2)(a) is an unconstitutional bill of attainder because it is a legislative punishment after the fact that does not advance a proper purpose and that bars him from participating in a legal business. Garozzo asserts the law is an unconstitutional retrospective law because it impairs substantial rights and imposes new disabilities with regard to past transactions. He argues the law violates his constitutional right to substantive due process because it is not rationally related to a legitimate state interest. Garozzo contends the law violates his constitutional right to procedural due process because it changes the terms and consequences of his guilty plea after the fact.

SC92229
State of Missouri v. Joey D. Honeycutt
Greene County
Unlawful possession of a firearm

NOTE: This case was scheduled to be reargued April 3, 2013, but then was removed from the argument docket March 29.

Listen to the oral argument:

The state was represented during arguments by Daniel N. McPherson of the attorney general's office in Jefferson City, and Honeycutt was represented by Margaret M. Johnson of the Missouri State Public Defender's office in Columbia.

Joey Honeycutt was convicted in September 2002 of the felony of possession of a controlled substance. He later was charged with unlawful possession of a firearm under section 571.070, RSMo, which was amended in 2008 to prohibit anyone convicted of a felony from possessing a firearm. Prior to the amendment, only those convicted of dangerous felonies – which did not include possession of a controlled substance – were prohibited from possessing a firearm. At trial, Honeycutt filed a motion to dismiss the charge of unlawful possession of a firearm for violating the Missouri Constitution’s article I, section 13 prohibition against retrospective laws and article I, section 23 right to keep and bear arms. The trial court found section 571.070 unconstitutional under article I, section 13 as applied to Honeycutt and dismissed the charge against him. The state appeals.

The state argues the trial court erred in dismissing the charge against Honeycutt for possession of a firearm by a convicted felon. It contends the article I, section 13 prohibition against enacting retrospective laws does not apply to section 571.070 because it is a criminal statute. The state asserts the prohibition applies exclusively to civil rights and remedies. It argues the prohibition has no application to crimes and punishments.

Honeycutt responds that the trial court correctly dismissed the charge against him for possession of a firearm by a convicted felon. He contends this Court has determined that article I, section 13 prohibits the enactment of retrospective laws. Honeycutt asserts the Court has found in prior cases that the prohibition applies to crimes and punishments as well as civil rights and remedies. He argues that, under the prohibition, vested rights cannot be impaired and new obligations cannot be applied with respect to past transactions. Honeycutt contends the 2008 amendment to section 571.070 impaired his vested right to possess a firearm. He asserts it also created a new obligation, imposed a new duty and attached a new disability on him not to possess firearms. He argues the amendment is unconstitutionally retrospective as applied to the facts of his case.

SC92497
In re: John J. Allen
St. Louis city
Attorney discipline

Listen to the oral argument:

The Office of Chief Disciplinary Counsel was represented during arguments by Chief Disciplinary Counsel Alan D. Pratzel, and Allen was represented by Mark E. Goodman of Capes, Sokol, Goodman & Sarachan PC in St. Louis. Judge James F. Kanatzar, a circuit judge with the 16th judicial circuit (Jackson County), sat in this case by special designation to fill the vacancy due to the retirement of Judge William Ray Price Jr.

St. Louis attorney John Allan filed a wrongful death petition against a doctor in December 2005 on behalf of his clients. He later filed an affidavit in the same matter, alleging he had received the expert opinion of three doctors regarding the case. Allan had not actually obtained the written opinion of one of the doctors as alleged in the affidavit. At deposition, this doctor testified he never had given Allan a written opinion and was unable to form a medical opinion regarding the care provided by the defendant because he had not received pertinent X-rays for review. Allan did not discuss with this doctor his opinion of the care the defendant had provided until immediately before the deposition. Allan failed to notify the trial court of the false statements made in the affidavit. Opposing counsel notified the trial court of the false affidavit and filed for sanctions against Allan. The court sanctioned Allan and dismissed the case. Allan appealed, but the claims ultimately were dismissed. The clients filed a complaint with the chief disciplinary counsel’s office, which asks this Court to discipline Allan’s law license.

The chief disciplinary counsel asks this Court to suspend Allan’s law license. He notes that Allan received six admonitions between 1992 and 2008 and was reprimanded and placed on probation in 2007. The chief disciplinary counsel argues Allan again has violated the rules of professional conduct. He contends Allan knowingly filed a false affidavit and subsequently failed to correct the affidavit, violating Rules 4-3.3(A)(1); 4-3.3(A)(3); 4-4.1; 4-8.4(C); and 4-8.4(D). The disciplinary counsel asserts Allan was not diligent in properly preparing his expert witness for deposition. He argues Allan failed to provide his witness with the materials needed to form a medical opinion and failed to interview the witness prior to the date of the deposition in violation of Rule 4-1.3. The disciplinary counsel contends this Court should suspend Allan’s license because he previously has received six admonitions, a reprimand and a suspension that was stayed with probation.

Allan responds that he did violate the rules of professional conduct regarding the present case, but he contends that he took actions to remedy the situation. Allan asserts he spoke to the doctor he was using as an expert witness following the deposition to obtain his opinion. He argues these actions justify a reduction in the degree of discipline he receives. Allan responds that prior disciplinary cases on which the chief disciplinary counsel relies on can be distinguished from the facts of his case. Allan contends he informed his clients of his breach of the rules of professional responsibility and argued their case to the court of appeals.