Case Summary for January 6-7, 1999

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Case Summary for January 6-7, 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.

DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

Wednesday, January 6, 1999

81066
State ex rel. K-Mart Corporation v. Honorable Ronald R. Holliger, etc.
Jackson County
Jurisdictional dispute; slip-and-fall case

A Jackson County resident sued K-Mart in Jackson County circuit court, alleging that she slipped and fell in a K-Mart store in Colorado. K-Mart is a Michigan corporation authorized to do business in Missouri as a foreign corporation. K-Mart filed a motion to dismiss for lack of personal jurisdiction or pursuant to the doctrine of forum non conveniens. Circuit court Judge Holliger overruled K-Mart’s motion.

K-Mart contends the court should have dismissed the case because it lacked jurisdiction over K-Mart, a non-resident defendant, in a case involving an accident in Colorado. To submit K-Mart to the court’s jurisdiction, section 506.500.1 requires the cause of action to arise out of K-Mart’s contacts with Missouri, and this action does not arise out of K-Mart’s business in Missouri. Missouri’s statutes, the manner of service, and the fact that K-Mart had to register an agent for conducting business do not give the court personal jurisdiction over K-Mart. K-Mart also contends the court should have dismissed the case because of the substantial inconvenience of trying a case when the accident happened in Colorado.

Respondent argues the court has personal jurisdiction because: section 506.500.1 is not the exclusive means of obtaining jurisdiction over a foreign corporation; K-Mart has consented to jurisdiction by seeking authority to do, and doing, business in Missouri; and K-Mart’s business presence and activities provide the basis for the jurisdiction. Respondent also argues the court did not abuse its discretion in deciding the forum was not too inconvenient.

The Missouri Association of Trial Attorneys filed an amicus curiae brief in support of Respondent. MATA argues a foreign corporation authorized to do business in Missouri should be treated the same as a domestic corporation for personal jurisdiction, and section 506.500 was intended to expand—not restrict—personal jurisdiction. MATA also argues subjecting businesses in Missouri to the personal jurisdiction of Missouri courts serves public policy.

81020
State ex rel. Douglas Sharp, et al. v. Honorable Kenneth M. Romines, etc.
St. Louis County
Venue dispute; suit against University for alleged “tuition”

Plaintiffs are a class of current and former students of the University of Missouri—Columbia, Rolla, St. Louis, and Kansas City. They claim the University charges tuition to Missouri residents in violation of section 172.360. The class filed its action in St. Louis County pursuant to section 508.040. Defendant University curators requested dismissal or transfer for improper venue. The judge found that venue was proper in St. Louis County but transferred the case to Boone County because St. Louis County was inconvenient.

The class contends that transferring the case on the grounds of forum non-conveniens is error as a matter of law. Forum nonconveniens has no intrastate application, according to Willman v. McMillen, 779 S.W.2d 583 (Mo banc 1989). St. Louis County is not too inconvenient given, for example, the University’s connections there. The class has a right to have its case adjudicated in St. Louis County, where venue statutes permit it.

The University argues the class has no clear right have its case heard in St. Louis County. The Court should more narrowly read or reject Willman, supra. The general venue statutes should not abrogate the court’s discretion to recognize the common law doctrine of forum non conveniens. Boone County is a better place to have the case based on the criteria for transferring cases. The University also argues transfer is appropriate on grounds other than stated in the order, namely that venue was improper because the corporation venue statute does not apply to actions against it.

81123
In re: Charles W. Franklin
Callaway County
Attorney discipline

In 1986, Jerry Noah and his wife retained Fulton County attorney Charles W. Franklin to pursue Noah’s claim for injuries from an all-terrain vehicle accident, on contingency fee basis without a written contract. Franklin intended to pursue a products-liability claim but failed to do so for more than five years, which was after the statute of limitations expired. Successor counsel was able to convince the court to allow a late filing since Noah had been incapacitated. Franklin has been admonished three times since 1993, and prior to that, lost a malpractice case, each related to failing to act promptly.

Disciplinary counsel argues that Franklin’s license should be suspended with leave to apply for reinstatement after 60 days, because he violated rules related to competence and diligence as well as violating the rule that contingent fee agreements be in writing. Suspension is appropriate because of his prior admonitions, American Bar Association sanction standards, the recommendations of the disciplinary hearing panel, court guidelines, and to protect the public.

Franklin argues suspension is unwarranted. When he discovered the statute of limitations had run, he immediately told Noah and his wife and explained possible remedies. In two of the three prior admonitions, the complainant was not a client; one client is still a client. Steps have been taken to avoid similar situations.

80442
State of Missouri v. Kenneth Thompson
Dallas County, Benton County
First degree murder (2 counts), death penalty both counts

Kenneth Thompson was tried in Dallas County, on change of venue from Benton County, for the killing of his wife's parents, Clarence and Arlene Menning. He presented a defense of diminished capacity, submitting that he experienced a psychotic episode. He was convicted of murder and sentenced to death on each count.

Thompson contends: (1) He was not given sufficient notice that the state intended to introduce evidence of unadjudicated bad acts, including his escape from jail, his ex-wife's testimony that he had previously shot someone, and his threats against his ex-wife and wife. He argues the prosecutor should have been compelled to preserve notes of witness statements.

Thompson also argues: (2) The trial court failed to properly rule on various motions relating to the state's alleged failure to disclose or late disclosure of evidence and testimony. (3) A potential juror was improperly stricken for cause because she could not sign the death warrant, although she could consider the death penalty. (4) An examining doctor's notes should not have been disclosed because they were the defendant's statements. (5) The state improperly cross-examined an expert witness. (6) The state should not have been allowed to introduce evidence that the defendant was on probation, the Sheriff's opinion that he feigned memory loss, and shells found in his car, because the evidence was irrelevant and the sheriff's opinion invaded the province of the jury. (7) Thompson’s escape should have been excluded and the jury panel should have been stricken because of the prosecutor’s improper remarks. (8) The trial court improperly limited questioning of potential jurors, for example about pretrial publicity. (9) The prosecutor improperly defined “reasonable doubt” during voir dire, and certain potential jurors should not have been stricken because they were confused by the prosecutor's definition. The instructions also improperly defined “reasonable doubt”. (10) Defendant should have been allowed the arrest records of jurors and state witnesses and other juror data, as the state had it and it was relevant. (11) The jury was not sufficiently instructed on the “depravity of mind” aggravator, for a number of reasons including that the Court cannot remedy its vagueness by continually adding narrowing definitions. (12) The sentence in this case is disproportionate to similar cases.

The state contends: (1) The prosecutor did not violate discovery rules. The state had no obligation to disclose certain evidence, did not know of the ex-wife's testimony or introduce testimony knowing it to be false, and the state's investigator was not ordered to preserve his notes.

The state further contends: (2) The evidence that was the subject of Thompson's discovery motions was either not discoverable or Thompson did not show he was prejudiced by the timing of the disclosure. (3) The potential juror stricken for cause held views on the death penalty that would prevent her jury performance; she said she would hold the state to a higher burden of proof than the law requires. (4) The doctor's notes on which he based his opinions were discoverable and properly used to impeach the doctor's testimony and conclusions. Thompson's statements were also in his video testimony or from other witnesses. (5) The "bad acts" evidence was admissible. It showed intent and a complete story. The record does not show the Sheriff gave improper opinion testimony. (6) Thompson's escape showed consciousness of guilt. The prosecutor's statement to the potential jurors that Thompson complains of was only a summary repeating back what a potential juror said. (7) Thompson was allowed to question the potential jurors. His questions were marginally relevant. He was permitted to rephrase them into more relevant forms. (8) The state did not define or mis-define the standard of "beyond a reasonable doubt". (9) The state did not use juror arrest records and had no "other" juror data, so Thompson was not entitled to the material. He did not show a need for witness arrest records. (10) The aggravating circumstance of "depravity of mind" is not unconstitutionally vague. The state produced sufficient evidence to support it. It could not have prejudiced Thompson because the jury found another aggravating circumstance. (11) The death penalty in this case passes the Court's meaningful proportionality review.

Thursday, January 7, 1999

81053
David B. Courtway, et al., v. Mel Carnahan, et al.
Cole County
Political appointment of fee office agents of Department of Revenue

Plaintiffs/appellants challenge the traditional Missouri practice where Department of Revenue fee office agents appointed under section 136.050 may be terminated and replaced when a new governor from a one political party replaces another. Sixty fee agents, who were mostly Republicans appointed during the former Governor Bond and Aschroft administrations, filed suit to prevent the termination of their contracts after Governor Mel Carnahan, Democrat, was elected in 1992. The court upheld their termination.

Appellants contend the terminations violate their rights under the federal constitution's first and fourteenth amendments and the state constitution's article I, sections 8 and 9, guaranteeing freedom of speech and association. They argue political affiliation is not an appropriate requirement for the effective performance of their duties because their duties are ministerial and do not involve government policy-making. Both parties may have traditionally viewed the fee offices as political, but the fee agent statute does not include political duties and now the offices are not political, so their positions should not be based on political patronage.

The Governor contends political affiliation is an appropriate requirement. Fee agents are selected not on skill but to represent the Governor in their offices across the state. Many of the appellants continue to work to Republican ends, contrary to the Governor. Also, many of appellants were appointed to replace Democrat fee agents when Governor Bond succeeded Governor Teasdale; case law from that time reinforced the patronage system for fee agents; when they took their positions, they knew their contracts could be terminated on patronage.

80871
Andrew Shahan v. Todd Shahan, et al.
Adair County
Execution/garnishment on insurance for personal injury

Andrew Shahan was injured in a vehicle accident. His half-brother, Todd Shahan, was driving. Andrew, but not Todd, lived with Andrew's mother and step-father. The parents had insurance policies with State Farm Mutual Automobile Insurance Company, including a liability policy for the truck and a personal liability umbrella policy, which also covered the vehicle.

State Farm filed a declaratory action, arguing Todd was not covered under the automobile policy because he did not have permission to use the truck. The court found Todd had implied permission to use the truck and was, therefore, covered by that policy.

Andrew, by next friend, filed suit against Todd. State Farm argued the household exclusion applied to deny coverage beyond a statutory $25,000. The court held the household exclusion inapplicable because Todd did not live in the insured's house. Andrew received a judgment for $225,000 and interest.

Andrew then sought execution against State Farm. State Farm contended it was not liable under any policy. The court held that the previous ruling--holding that the truck liability policy's household exclusion did not apply--was binding as the law of the case; it ordered State Farm to pay the policy limit. But the court found that no prior ruling had been made regarding the umbrella policy, and no coverage was afforded under that policy.

Andrew contends he was covered under the umbrella policy based on waiver, estoppel, and res judicata. The insurance company only raised the defense that Todd was not permissive user and, later, the household exclusion which the court rejected. State Farm cannot now raise new grounds or re-litigate grounds that were or could have been raised.

State Farm contends that the household exclusion in the automobile policy did apply. It clearly excluded coverage for insureds, defined to include Todd. State Farm is not estopped from asserting another ground; Andrew has not shown prejudice. Waiver and estoppel cannot create coverage. The declaratory judgment is not res jucicata of the present matter, and collateral estoppel is inapplicable.

80861
George Riche v. Director of Revenue, et al.
Clinton County
Traffic stop for impaired driving

A highway patrol trooper stopped George Riche for twice driving on the white line on the right of the roadway. Riche failed field sobriety tests, and a breath test reflected a blood-alcohol level over the legal limit. The Director suspended Riche’s driver's license under section 302.505 for driving with a BAC over .10%. The trial court upheld the administrative suspension.

Riche contends that section 302.505.1 requires the police officer to have probable cause to believe that a traffic violation has occurred or a reasonable, articulable suspicion that an occupant is involved in criminal activity before stopping him, in order to comply with the Fourth Amendment of the federal constitution. He also argues that section 302.505 violates the equal protection clauses of the state and federal constitutions because the statute requires probable cause for the stop if the driver is under twenty-one but omits this requirement if the driver is over twenty-one. Riche contends the exclusionary rule applies to proceedings under section 302.505 because the proceedings are a civil forfeiture proceeding having a quasi-criminal character. Finally, he argues the director should have been required to prove the legality of the stop.

The Director argues section 302.505 does not require it to prove the officer had probable cause for the initial traffic stop, but rather, for arresting the driver for driving while intoxicated. The exclusionary rule does not apply to civil drivers license proceedings, only to criminal proceedings. Suspending the driving privilege is civil—to protect the public, not punish the driver. Section 302.505 does not authorize an officer to stop a driver without probable cause but simply does not require the Director to prove probable cause for the stop. The Director also contends the statute comports with the equal protection clause because it is rationally related to a legitimate state interest.

80821
State of Missouri v. Carmen L. Deck
Jefferson County
First degree murder (2 counts), armed criminal action (2 counts), first degree, burglary, first degree robbery; Death (2 counts), life imprisonment (2 counts concurrently), 30 years, 15 years, consecutively

Carmen Deck robbed a couple in their home in Jefferson County, had them lie on the bed, and after thinking about ten minutes, shot each of them in the back of the head. Deck was convicted of murder and sentenced to death for each killing. (He was also convicted and sentenced on related charges.)

Deck contends: (1) The jury was not properly instructed on mitigating circumstances. A portion of the penalty phase instructions were inadvertently omitted, including instructions that the jury shall consider mitigating circumstances, that all jurors do not have to agree on particular facts in mitigation of punishment, and that if each juror determined mitigators outweighed aggravators, a life sentence must be imposed.

Deck also contends: (2) The trial court should have defined the term “mitigating circumstances” on the jury's request, especially with the mitigating instructions' defects. (3) Deck's statements and evidence seized from him should have been suppressed because his initial stop was illegal. (4) Venue should have been changed due to extensive publicity. (5) The state improperly used peremptory strikes against two women, failing his Batson challenge. (6) A potential juror should have been stricken for cause because he felt punishment should match the crime, predisposing him to impose death. (7) A mistrial was required when the prosecutor argued in penalty phase that the jury should vote for death to show mercy to the people in the courtroom, based on emotion not evidence. (8) The prosecutor improperly personalized penalty phase closing by asking jurors to think how long ten minutes was with a gun to their head. (9) A mistrial was required when victim impact witnesses, people in the courtroom, and jurors began to cry during testimony. (10) The jury should have received instructions identifying specific non-statutory mitigating evidence that the jury should consider. (11) The jury was improperly instructed on the meaning of “reasonable doubt.”

The state argues: (1) Deck submitted the mitigating instructions so cannot complain about them. In any event, the instructions did not misdirect or fail to instruct the jury. As a whole, the instructions guided the jury through the mandated process. The instructions allowed jurors to consider mitigation.

The state further argues: (2) The court properly declined to define "mitigating" because the instructions' notes on use do not permit a definition, and it is improper for a jury to consult a dictionary. As a whole, the instructions guided the jury through the process. (3) Deck's statements and evidence were admissible and not the product of an illegal search. He was stopped for driving without lights and appeared to reach for his gun when stopped. (4) No evidence showed Jefferson Countians had such fixed opinions from publicity that they could not judge guilt impartially. None who said it would be difficult to be fair were on the final jury panel. (5) The state provided gender-neutral reasons for removing two female potential jurors. (6) The potential juror who Deck claims should have been stricken for cause did not serve on the jury. Besides, he said he could consider a life sentence for murder. (7) The prosecutor was entitled to argue justice would not be served by granting mercy to Deck. There is no reasonable probability the result would have been different without the brief comment. (8) Deck did not preserve claims of error in closing argument, and there was no manifest injustice. The comments did not rise to improper personalization. (9) The victim impact testimony and courtroom reaction was not so unduly prejudicial that it rendered the trial unfair. The testimony was relevant and without unreasonable emotion. (10) Listing nonstatutory mitigating circumstances is not required. (11) The instructions did not lower the state's burden of proof; they appropriately defined reasonable doubt. (12) This court should affirm the death sentence under its independent statutory review, which was not addressed by Deck.