Case Summary for December 9, 2004

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Case Summary for December 9, 2004

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

Thursday, December 9, 2004
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SC86122
In re: Elbert A. Walton, Jr.
St. Louis
Attorney discipline

In February 2001, St. Louis, Missouri, attorney Elbert Walton, Jr., represented Ernestine Washington at a hearing before Judge Dennis Smith in St. Louis County regarding Washington's motion to set aside an earlier child custody modification order. Walton thought he was making a special appearance only on the motion, while the judge advised Walton that he in fact had made a general entry of appearance earlier in the hearing when he said he wished to proceed in representing Washington. According to the judge, Walton then rapidly approached the bench, leaned across it, waved his hand in a threatening manner inches in front of the judge's face, and, in a loud voice, accused the judge of tricking him. Walton subsequently apologized to the judge. The judge accepted the apology and did not find Walton to be in contempt. In March 2001, Washington filed a complaint against Judge Smith with the commission on retirement, removal and discipline. Walton provided the commission, at its request, a statement regarding Washington's complaint. Two years later, the chief disciplinary counsel filed an amended information against Walton that included the February 2001 incident before Judge Smith. Following a November 2003 hearing, the regional disciplinary panel in April 2004 recommended a public admonition. The next month, the panel issued a "judgment nunc pro tunc" (describing a courts authority to later correct clerical errors in its record to reflect what actually occurred previously) recommending instead that Walton be subject to a public reprimand. The chief disciplinary counsel asks this Court to discipline Walton.

The chief disciplinary counsel argues this Court should publicly reprimand Walton. She contends his courtroom conduct during the February 2001 hearing of leaning over the judge's bench, waving his hand in a threatening manner near the judge's face and accusing the judge of tricking him violated Rules 4-3.5(c) by disrupting the tribunal and 4-8.4(d) by engaging in conduct prejudicial to the administration of justice.

Walton responds that the Court should not publicly reprimand him. He argues his conduct during the February 2001 hearing did not violate the rules of professional responsibility. He contends the evidence shows he did not lean over the judge's bench or wave his hand in any threatening manner close to the judge's face. Walton asserts that the judge's complaint was made in retaliation for Walton giving a statement supporting Washington's complaint about the judge to the commission on retirement, removal and discipline. Walton responds that the apology he made before the judge at the time of the alleged incident should have ended the matter. He argues the disciplinary panel's nunc pro tunc judgment was issued without jurisdiction because no clerical error appears in the panel's record.

SC85747
Fernando Ibarra Maldonado v. Gateway Hotel Holdings, L.L.C.
St. Louis City
Negligence and damages for injuries sustained during boxing match

In the fall of 1998, Dough Hartmann approached the convention services manager for the Regal Riverfront Hotel in St. Louis, Missouri, about scheduling a boxing event at the hotel. Hartmann made all arrangements for the boxing match itself. The Missouri office of athletics, which regulates boxing in this state, issued Hartmann a license for the match at the hotel. Hartmann chose the boxers and determined who and how they would fight. At Hartmann's request, the Missouri department of athletics chose the fight judges, timekeeper and inspectors, and it arranged for an approved physician to be present at ringside during the match. Under federal law, either an emergency medical technician with resuscitative equipment or an ambulance must be present at a boxing match. Under his contract with the hotel, Hartmann agreed to arrange to have an ambulance onsite during the match. Hartmann arranged only for an EMT with resuscitative equipment to be present, and no ambulance was on site. During the January 1999 nationally televised match, 23-year-old professional boxer Fernando Maldonado sustained several blows to his head, and the match ended when he was knocked out. The ringside physician revived him, he left the ring and walked to his dressing room. He then lost consciousness again. The ringside doctor and EMT were summoned, and an ambulance was called. He arrived at the hospital more than 90 minutes after he collapsed, and he suffered brain damage as a result of his injuries. Maldonado sued Gateway Hotel Holdings, L.L.C., which owns the Regal Riverfront, and several other defendants. He claimed they were negligent in failing to provide an ambulance on the premises during the boxing match and to monitor his medical condition after his bout, delaying his treatment and resulting in his brain damage. Maldonado submitted only his claims against Gateway to the jury. The court found that Maldonado failed to make a submissible case for punitive damages and, therefore, did not submit that issue to the jury. In December 2001, the jury awarded Maldonado total damages of $41.1 million, including $13.7 million in compensatory damages and $27.4 million in punitive damages. In March 2001, the court struck the punitive damages award and entered judgment in Maldonado's favor in the amount of the compensatory damages only. Gateway appeals.

Gateway argues the court should have entered judgment in its favor. It contends Maldonado failed to plead and prove that Gateway was liable under the inherently dangerous activity doctrine as a landowner that hired Hartmann as an independent contractor. Gateway asserts that it did not hire Hartmann to perform an inherently dangerous activity on its behalf. It also asserts that Maldonado assumed any risk inherent in the allegedly inherently dangerous activity of boxing and, therefore, is not entitled to recover for injuries resulting from risks that were not inherent in that activity. Gateway argues the court improperly instructed the jury, allowing it to impose liability based on risks Maldonado assumed. It contends the court should have instructed the jury that the term "inherently dangerous activity" did not include a risk that was negligently created by Hartmann's conduct. Gateway asserts that the instructions improperly permitted the jury to find for Maldonado on a theory he did not plead or prove at trial and to award Maldonado damages resulting from risks he had assumed or that are not inherent in boxing. It asserts that not having an ambulance at the match or monitoring medical personnel after the bout are not risks inherent in boxing. Gateway argues the court should not have admitted reference to or evidence of a prior lawsuit in which Gateway was involved that arose out of a kickboxing match. It contends that case was not relevant to Maldonado's case and may have misled the jury. Gateway asserts the court improperly let Maldonado infuse comments during closing argument that improperly injected the issue of punitive damages into the case. It notes that the jury attempted to award punitive damages and returned a compensatory damage amount that was nearly three times more than what Maldonado sought. Gateway argues the verdict was excessive, was not based on the evidence, and resulted from the jury's passion, prejudice and bias. In its supplemental brief, Gateway argues that remand for a new trial is inappropriate. It contends that the essential evidence already has been presented fully and that, on remand, Maldonado could not make a submissible case under the inherently dangerous activity doctrine. Gateway asserts that the record shows that Maldonado made a strategic decision to submit his case solely on the inherently dangerous activity doctrine and that the facts do not support any other theory of liability against Gateway.

Maldonado responds that the court properly denied Gateway's motions for a directed verdict or judgment notwithstanding the verdict. He argues Hartmann Productions was an independent contractor of Gateway and that Hartmann's failure to take the special precautions for the inherently dangerous activity of boxing was Gateway's non-delegable duty. Maldonado contends that Gateway knew there would not be an ambulance onsite, even though its contract with Hartmann required one. He asserts the court properly instructed the jury on the meaning of "inherently dangerous activity" and that he made a submissible case under the inherently dangerous activity doctrine. Maldonado argues the court did not abuse its discretion in admitting evidence of and reference to the previous case in which Gateway was involved, which he contends was relevant to issues in this case. He asserts that Gateway waived its right to object by mentioning the previous case during its opening statement and that Gateway failed to request a limiting instruction. Maldonado argues that its closing argument did not improperly inject punitive damages into the case and that the court properly determined that the jury did not include a punitive damages component in its compensatory damage award, because it made two separate awards. He further responds that the court properly denied a new trial because the jury's verdict was supported by the evidence and was not excessive. In his supplemental brief, Maldonado responds that this Court has the discretion to remand a case in which a party obtained a verdict on a theory that is not supported by the evidence. He argues this Court has such discretion even when the theory upon which the verdict was obtained was the only theory submitted to the jury. He contends a case should not be reversed without remand unless an appellate court is convinced that the facts would preclude any recovery. Maldonado asserts that, where a case is remanded because of insufficient evidence supporting a verdict under the theory submitted, the plaintiff may, on retrial, submit the case to the jury on a theory that was not raised in the first trial.

SC86201
State of Missouri v. Helen A. Severs
Cape Girardeau County
Challenge to verdict in conspiracy to murder case

During the summer of 2002, Linda Myers talked repeatedly with Glenda Phillips about Myers' son-in-law and about where Myers could obtain a gun. Phillips eventually reported the conversations to law enforcement. During a subsequent phone conversation between Myers, Phillips and an undercover highway patrol officer, Myers said her mother, Helen Severs, had given her $75 to buy a gun. Another undercover officer then met with Myers near a Cape Girardeau, Missouri, mall, where he sold Myers a nine-millimeter semiautomatic gun from the local sheriff's property room for $75. Myers told the officer that her mother would be using the gun and also told him that she believed her son-in-law had been molesting her granddaughter. She told the undercover officer that the plan was that the son-in-law be killed and both the body and the gun thrown into the Mississippi River that night or the next night. Myers subsequently was arrested. During a later phone conversation, Severs told the first undercover officer that she wanted Myers' son-in-law dead and that she needed extra bullets so she could practice firing the gun. Severs was arrested, and during a subsequent interrogation, Severs waived her Miranda rights and admitted that she was getting the gun to kill Myers' son-in-law. The jury ultimately found Severs guilty of conspiracy to murder, and the court sentenced her to five years in prison. She appeals.

Severs argues the court violated her constitutional rights to due process and a fair trial in accepting the jury's verdict and in sentencing her to prison. She contends the jury's verdict was inconsistent on its face because it found her guilty but also stated that she should not be given a conviction but rather a suspended imposition of sentence.

The state responds that the court properly accepted the jury's verdict and sentenced Severs. It argues the verdict was not inconsistent on its face because the jury found Severs guilty and assessed punishment at five years in prison. The state contends the court properly treated as surplusage the language in the verdict asking for a suspended imposition of sentence, which was nothing more than a request for leniency.

SC86129
State of Missouri v. Ronnie D. Gonzales
St. Louis City
Challenge to evidentiary rulings and self-defense instructions in murder case

On Halloween 2001, Ronnie Gonzales and Mike Gossir got into a shoving match in the foyer of the home of a couple with whom they both were friends. The men ended up in the kitchen, where Gonzales hit Gossir in the chest, stabbing him. Gossir died, and the state charged Gonzales with first-degree murder and armed criminal action. At trial, Gonzales argued he was acting in self-defense. The jury found Gonzales guilty of second-degree murder and armed criminal action. In January 2003, the court sentenced him to concurrent terms of 30 years and 10 years in prison, respectively. Gonzales appeals.

Gonzales argues the court improperly excluded evidence that Gossir had a reputation for being aggressive, turbulent and violent. He contends that, because he argued self-defense, Gossir's reputation for violence was admissible on the question of who was the aggressor. Gonzales asserts that the court plainly erred in refusing to give the jury an instruction he submitted, instead giving the jury an instruction that limited his right to self-defense if the jury found he was the initial aggressor. He argues the evidence does not support this instruction because an initial aggressor must be one who first attacks or threatens to attack another, not one who made a particular comment. Gonzales contends the court abused its discretion in refusing to let him play an audiotaped statement a witness made to police to impeach the witness during cross-examination. He asserts that the court improperly determined that he could not use this recorded, prior inconsistent statement to impeach the witness directly on cross-examination. Gonzales argues the court plainly erred in allowing two witnesses to testify that Gonzales told them he had been in a confrontation at a tavern before coming to their home. He contends this specific confrontation was not admissible because it was not with Gossir. He asserts that the confrontation instead portrays Gonzales as a person with a propensity for being confrontational and lured the jury into finding him guilty on a basis different from that related to the charged offense.

The state responds that the court properly excluded evidence of Gossir's reputation for violence. It argues such improper propensity evidence was not admissible in support of Gonzales' self-defense claim because Gonzales failed to lay a proper foundation to show that he was acquainted with Gossir's community or knew of Gossir's reputation. The state contends the court did not plainly err in submitting the self-defense instruction that included the optional "initial aggressor" language. It asserts that the evidence showing that Gonzales initially confronted Gossir supported such language. The state responds that the court did not abuse its discretion in excluding portions of a witness' audiotaped statement to the police during the cross-examination of that witness. It argues that, because the court ruled that Gonzales could admit and play the audiotape during the presentation of his case, Gonzales was not prejudiced. The state contends the court did not plainly err in admitting testimony that Gonzales had been in a tavern confrontation earlier in the evening when he killed Gossir. It asserts that this evidence was relevant because it established Gonzales' state of mind before he attacked and killed Gossir.