Case Summary for November 19, 2003

Your Missouri Courts - Supreme Court

Home

Case Summary for November 19, 2003

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. A set of free tools that allow visually disabled users to read documents in Adobe PDF format is available from access.adobe.com.) 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

Wednesday, November 19, 2003
______________________________________________________________________________

SC85392
Eric Krugh and Joseph Krugh v. Don Hannah, Lake Ozark Construction Industries, and Millstone Marina Service, L.L.C.
Jackson County
Propriety of setting aside default judgment in negligence case

In May 1998, Eric Krugh and his son Joseph were injured severely when the boat they were in exploded upon starting. The boat had been winterized and de-winterized by Millstone Marina Service, L.L.C. The Krughs sued the marina and two other defendants, alleging that the boat exploded because of a fuel system leak. They alleged the marina was negligent because it failed to check the fuel system and hoses for leaks, to check the ventilation ducts, to follow the manufacturer's recommended procedures for recommissioning the boat and to warn them that the boat had not been inspected. A Morgan County deputy sheriff testified she served Carla Blazier, Millstone Marina's registered agent, with a summons and the Krughs' petition on May 23, 2000, although the agent testified she had no recollection of being served. On August 10, 2000, the Krughs faxed the marina a copy of the petition and return of service. Thirteen days later, Blazier faxed the lawsuit to a local insurance agent, although this agent apparently was not an agent of the marina's insurer, the Underwriters at Lloyd's. In February 2001, the Krughs moved for a default judgment. After a March 2001 hearing, the court entered the default judgment against the marina, finding that the marina had been served with the summons but failed to answer within the requisite 30 days. The Lloyd's agent apparently never received notice of the lawsuit until after June 2001, when it was notified that the court had entered a default judgment against the marina. Lloyd's retained counsel, who filed a motion to set aside the default judgment in August 2001. After a hearing, the court in November 2001 found that although Blazier may have been negligent in failing to notify the proper insurance company in a timely manner, Blazier made a good faith attempt to obtain legal representation. It found there was no intentional or reckless attempt to impede the judicial process. The court found, therefore, that Millstone Marina met the meritorious defense and good cause requirements under Rule 74.05 and set aside the default judgment. The Krughs appeal.

The Krughs argue the court erred in setting aside the default judgment. They contend Millstone Marina failed to set forth facts constituting a meritorious defense, as required by Rule 74.05(d) in its motion to set aside the default judgment, affidavit or proposed answer. They assert that Millstone Marina instead presented only conclusional statements that it would or could present evidence if given the opportunity. The Krughs also argue Millstone Marina failed to show good cause for its failure to file a timely answer to their petition. They contend Millstone Marina failed to produce any evidence why it took no steps to respond to their petition within the requisite 30 days. They assert that any conduct by the marina or its agent after the default judgment was entered cannot constitute good cause for being in default in the first place, particularly where the evidence showed Blazier is familiar with the legal process and has been in default in several lawsuits.

Millstone Marina responds that the court did not abuse its discretion in setting aside the default judgment. The marina argues its motion to set aside the default judgment asserted facts of a meritorious defense sufficient to meet the Rule 74.05(d) pleading standard. It contends it had no duty to make the boat repairs the Krughs claim it should have made. The marina argues there was substantial evidence to support the court's good cause finding. It contends it did not impede the judicial process recklessly or intentionally. It asserts that it gave the lawsuit to its insurance agent before default and that the insurer failed to retain defense counsel and file an answer in a timely manner.

SC85456
Larry Hampton v. Big Boy Steel Erection and Liberty Mutual Insurance Company and Treasurer of the State of Missouri, as Custodian of the Second Injury Fund
St. Louis County
Whether workers' compensation award should be partial or total

In January 1998 in St. Louis County, Larry Hampton was injured while working as an ironworker foreman for Big Boy Steel Erection when he slipped while moving from a beam to a joist. He was diagnosed with acute lumbar strain, degenerative disc disease and degenerative spine disease, and he retired in February 1999. Hampton subsequently filed a workers' compensation claim, and in February 2002, the administrative law judge awarded Hampton permanent 25-percent disability and future medical. Hampton sought review from the labor and industrial relations commission, which in August 2002 modified the award to include permanent total disability benefits rather than permanent partial disability benefits. Big Boy Steel appeals.

Big Boy Steel argues that the reviewing court must consider the overall effect of the whole record, including evidence that detracts from the award, in determining whether the commission reasonably could have made its findings and reached its conclusions upon consideration of all the evidence before it. Big Boy Steel contends the commission erred in awarding permanent total disability benefits against it and its insurer because there was no competent and substantial evidence supporting the commission's finding of total disability and because such an award was against the overwhelming weight of the evidence. Big Boy Steel asserts that Hampton's complaints of pain, limitations in range of motion and the nature of his injury do not establish that jobs in the open labor market are unavailable. It argues that two doctors testified that Hampton is partially disabled, that a vocational expert testified that Hampton is employable, and that the commission did not disturb the administrative law judge's finding that Hampton's vocational expert, who testified Hampton was totally disabled, was unpersuasive.

Hampton responds that the reviewing court must use a two-pronged review to determine whether substantial competent evidence supports the award and whether the award was against the overwhelming weight of the evidence. He argues the commission's award was supported by substantial competent evidence and was not against the overwhelming weight of the evidence. Hampton contends his testimony, his vocational expert's testimony and the admission of Big Boy Steel's vocational expert all established that he was permanently and totally disabled. He asserts that the commission correctly awarded him permanent total disability against Big Boy Steel and its insurer because the competent and substantial evidence show that his physical limitations and medical restrictions negate his ability to compete in the open labor market. Hampton further responds that the commission's award is not against the overwhelming weight of the evidence because all the evidence in the record, including expert medical evidence he presented, establish that he is permanently and totally disabled.

The second injury fund argues, as an additional party, that the reviewing court must engage in a two-prong review, first considering whether the commission's decision is supported by competent and substantial evidence. The fund contends that if the reviewing court so finds, then it must consider whether the commission's decision is supported by the record as a whole, including any relevant evidence that is contrary to the commission's decision. The fund further responds that the commission correctly found that Big Boy Steel is liable for permanent total disability as a result of Hampton's January 1998 injury alone. It asserts that the commission's decision is supported by competent and substantial evidence, is not contrary to the overwhelming weight of the evidence, and is reasonable based on all the evidence.

SC85119
Leon V. Taylor v. State of Missouri
Jackson County
Post-conviction relief in a death penalty case

In April 1994, Leon Taylor, his half-brother and his half-sister drove to a gas station in Independence, Missouri. He had a previous conviction for second-degree murder. Taylor showed a 9 millimeter semi-automatic pistol to gas station attendant Robert Newton, who asked Taylor not to shoot because Newton's young stepdaughter was present. Netwon placed money in a bag and gave it to Taylor's half-brother, who left. Taylor, Newton and the girl then went to a back room, where Taylor shot Newton in the forehead when the girl turned away momentarily. Taylor then pointed the gun at the girl and pulled the trigger, but the gun jammed and did not fire. Taylor then left, the girl called 911 and Newton ultimately died. Following a spring 1995 trial, the jury convicted Taylor of first-degree murder, first-degree assault, first-degree robbery and three counts of armed criminal action. After the jury could not agree on punishment, the court sentenced Taylor to death plus a life sentence, a 15-year sentence and three 100-year sentences to be served consecutively. Taylor sought post-conviction relief, which was denied, and in a consolidated appeal, this Court affirmed the convictions and all the sentences but death, but remanded for a new sentencing phase on the murder conviction based on the prosecutor's improper closing argument. State v. Taylor, 944 S.W.2d 925 (Mo. banc 1997). After the second penalty phase, which began before a new jury in November 1998, the jury recommended that Taylor be sentenced to death, and this Court subsequently affirmed the sentence. State v. Taylor, 18 S.W.3d 366 (Mo. banc 2000). Taylor then filed a new motion for post-conviction relief for alleged attorney errors during the second penalty phase. The motion court held an evidentiary hearing in June 2002 and denied the relief requested in December 2002. Taylor appeals. Taylor also has filed a separate motion to recall the mandates from his two earlier direct appeals, alleging that the Court should apply Ring v. Arizona, 536 U.S. 584 (2002), and State v. Whitfield, 107 S.W.3d 253 (Mo. banc 2003), to the circumstances of his first penalty phase. He argues that if this Court should recall its mandates, then this appeal would be moot.

Taylor argues the motion court clearly erred in denying his post-conviction claims. He contends his counsel failed to investigate, rebut and object to the prosecutor's suggestion that, while he was a teenager, he had stabbed a man to death. Taylor asserts that the state argued in that case that Taylor's cousin, not Taylor, had committed the stabbing, and that the prosecutor's misstatements prejudiced him. He argues his trial counsel failed to investigate and present, through a psychiatrist, mitigating evidence of Taylor's mental state and impaired capacity to appreciate the criminality of his conduct. Taylor contends his trial counsel failed to investigate and present mitigating expert testimony that he suffered from depression, post-traumatic stress disorder, and alcohol and drug dependence. Taylor asserts that his counsel also failed to present evidence that he is mentally retarded, despite available evidence that his use of inhalants placed him in the borderline mental retardation range. He alternatively argues that because he is mentally retarded, the death penalty is excessive under section 565.035.3(3), RSMo. Taylor contends his counsel failed to present mitigating evidence of his good conduct in prison and positive influence on others and of his remorse for his past deeds.

The state responds that the motion court did not clearly err because Taylor failed to prove that his counsel acted unreasonably or that his counsel's actions prejudiced him. The state argues it was not unreasonable for Taylor's counsel to not respond to the prosecutor's statements about Taylor's role in the previous stabbing. It contends that Taylor pled guilty to second-degree murder in the stabbing and that the jury in his cousin's trial found that both Taylor and his cousin committed the stabbing. The state asserts that Taylor's counsel conducted a reasonable psychiatric investigation of the mental problems he had at the time of the shooting. It argues that Taylor's counsel chose, as a matter of reasonable trial strategy, to present a more credible defense based on Taylor's life history that also kept out potentially damaging evidence. The state responds that Taylor waived his claims that evidence of his mental retardation should have been presented in the second penalty phase. It contends these claims also lack merit because Taylor failed to present evidence from which a reasonable fact-finder could find, by a preponderance of the evidence, that he was mentally retarded. The state asserts that Taylor's counsel used reasonable trial strategy in not presenting evidence of Taylor's good conduct in prison because it avoided admission of the enormous amount of bad conduct Taylor committed while in prison.