Case Summary for January 7, 2014

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Case Summary for January 7, 2014

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. Tuesday, January 7, 2014

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SC93448
Commercial Barge Line Company and American Commercial Barge Line, LLC, N/K/A American Commercial Line, LLC v. Director of Revenue
Cole County
State taxation of line haul boats
Listen to the oral argument:

The boating companies were represented during arguments by James W. Erwin of Thompson Coburn LLP in St. Louis, and the director was repersented by Deputy Solicitor General Jeremiah J. Morgan of the attorney general's office in Jefferson City.

Three associated companies, Commercial Barge Line Company, American Commercial Barge Line L.L.C. and Louisiana Dock Company L.L.C. operate boats on the Mississippi River, which runs through Missouri. Commercial Barge and American Barge do not have offices, property or employees in Missouri, but Louisiana Dock has a facility, employees and is a registered corporation in Missouri. Commercial Barge Line reports federal taxable income only for itself and Louisiana Dock. Three transactions in question, in which American Barge did not pay sales or use tax on the purchase of items, took place in the Mississippi river while mid-stream in St. Louis harbor. Towboats from shore would deliver goods to American Barge through the barge’s line haul towboats. The department of revenue audited all three companies and assessed over $78,000 for unpaid sales and use tax. American Barge appealed the determination to the administrative hearing commission. The commission found that taxable sales occurred when the goods were opened and inspected. It also determined that transactions west of the Missouri/Illinois boundary should be considered as taking place in Missouri and that half of those transactions were southbound sales. The companies appeal.

The companies argue the commission erred in finding them liable for sales and use taxes on southbound sales. They contend the commerce and due process clauses of the federal constitution require taxes to be fairly related to line-haul boat activities. The companies assert the boats do not receive direct services from the state. They argue that without direct services, the state cannot create a relationship sufficient to satisfy federal constitutional requirements for taxation. The companies contend that federal maritime law prohibits states from taxing any vessel operating on the navigable waters of the United States. They assert that even if the taxes are permitted, the statute of limitations bars the department of revenue from making tax assessments more than three years after they are due.

The director responds that the commission correctly determined the companies were liable for sales and use taxes on southbound sales. He argues the taxes are fairly related to the companies’ boat activities in Missouri. The director contends federal law does not prevent a state from imposing sales or use taxes. He asserts the companies failed to file their taxes for the years in question. The director argues that the three-year statute of limitations has not run because the limitation only begins to run once a party files its tax return.

SC93502
Ken and Janet Allen and Franklin Quick Cash v. Continental Western Insurance Company
Franklin County
Challenge to order requiring party to defend action

Notice: This case has been removed from the docket due to scheduling conflicts. It will be rescheduled for oral argument at a later date.

SC93756
John M. Rolwing v. Nestle Holdings, Inc.
St. Louis city
Challenge to statute of limitations
Listen to the oral argument:

Rowling was represented during arguments by Brian Ruschel, an attorney in Cleveland, Ohio, and Nestle was repersented by Thomas E. Wack of Bryan Cave LLP in St. Louis.

Nestle and Ralston Purina entered into an agreement to merge their two companies, including an arrangement for Nestle to buy all of Ralston’s common stock. John Rolwing held 2,400 shares of Ralston common stock, which he was paid for six days following the merger. Rolwing filed a petition against Nestle Holdings alleging breach of contract for untimely payment. Prior to this action, an Ohio circuit court granted summary judgment to Nestle against a separate plaintiff who also filed a separate class action suit seeking recovery for late payment. Nestle filed a motion to dismiss arguing that section 516.120, RSMo, applied a five-year statute of limitations to the action, which had already run. It also alleged the Ohio decision was controlling precedent. The circuit court granted the motion to dismiss finding the five-year statute of limitations applied and had expired. Rolwing filed a motion to vacate, alter or amend the judgment, which was overruled. Rolwing appeals.

Rowling argues the circuit court erred in dismissing his petition. He contends the petition is not barred by the five-year statute of limitations under section 516.120 because the 10 year statute of limitations under section 516.110 applies. Rolwing asserts his petition meets the requirements of section 516.110 in that it is an action on a writing, seeking payment of money and filed less than 10 years after the closing of the underlying transaction. He argues that his petition alleged the doctrine of equitable tolling (statute of limitations will not run for a refiled case while litigation is pending in the original filing), and that Nestle’s motion to dismiss corroborated (supported) that the statute of limitations would not expire for injured parties because of earlier class action legislation. Rowling contends that the court should have allowed him to refile the case after dismissal or granted his motion to vacate, alter or amend the judgment to cure deficiencies in the petition. He asserts the entire petition was not subject to dismissal because there was another claim upon which relief could have been granted.

Nestle responds the circuit court correctly dismissed Rolwing’s petition. It argues Rolwing’s breach of contract claim is barred by the five-year statute of limitations as set forth in section 516.120. Nestle contends the statute of limitations was not paused by the earlier class action litigation. It asserts Rolwing failed to allege a legitimate legal basis as to why the statute of limitations should not have run. Nestle argues that a recent decision from Ohio should persuade this Court to uphold the trial court’s findings.

SC93420
In re: Caryn H. Nadenbush
St. Louis County
Attorney discipline

Notice: This case was ordered to be submitted on briefs Jan. 2, 2014 and will no longer be argued.

Illinois attorney Caryn Nadenbush was licensed in Missouri and Illinois. The Illinois disciplinary authority suspended her Illinois license for 90 days after finding Nadenbush had ex parte (outside of court without opposing counsel) electronic mail communications with an arbitrator for the Illinois Workers’ Compensation Commission regarding matters pending before that arbitrator. Disciplinary counsel for Missouri notified the Supreme Court of Missouri that Nadenbush’s license was disciplined in Illinois.

The chief disciplinary counsel and Nadenbush stipulate (agree) that this Court should discipline Nadenbush due to the discipline issued by the Illinois Supreme Court. They contend Nadenbush violated rule 4-3.5(b) by communicating ex parte (outside of court) with an arbitrator regarding the merits of a pending case. Counsel and Nadenbush assert that she violated rule 4-8.1(a) by making a false statement of material fact during a disciplinary investigation. They also agree that Nadenbush violated rule 4-8.4(d) by mentioning inappropriate facts regarding settlement negotiations to the arbitrator in her ex parte communications and by making derogatory remarks about opposing counsel. Counsel and Nadenbush also agree she violated rule 4-8.4(c) by hiding the fact that the case she referred to while questioning the arbitrator was a pending matter before that arbitrator. Counsel asserts this Court should suspend Nadenbush’s Missouri license for 90 days, to reciprocate the discipline imposed by Illinois disciplinary authority.

Nadenbush adds that she self-reported her conduct to disciplinary authority in Illinois. She contends she did not lie about any of her conduct. Nadenbush asserts that admonition is the appropriate discipline to impose in this matter. She argues that because she is no longer engaged in the practice of law suspension is unnecessary and that an admonition would remain a part of her record should she return to the practice of law.