Case Summary for October 14, 2014

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Case Summary for October 14, 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.

Attached to the following docketed cases are electronic copies of briefs filed by the parties. These electronic briefs have been converted to PDF to accommodate various word processors. If you do not already have Acrobat reader, which is necessary to open the PDFs, 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.) These briefs do not reflect any opinion of the Court about the appropriateness of the format of the briefs or the merits of the case, nor are they official court records. Copies of all briefs filed with the Court are available at the Supreme Court Building in the court en banc division.

The attachments below may not reflect all briefs filed with the Court, the complete filing or the format of the original filing. Appendices and other attachments generally will not be posted here. To see what documents have been filed in a particular case, visit Case.net.

DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9:30 a.m. Tuesday, October 14, 2014
____________________________________________________________________________________________________

SC94097
Mumtaz Lalani v. Director of Revenue
St. Charles County
Challenge to tax on other tobacco products
Listen to the oral argument:

SC94097.mp3
Lalani was represented during arguments by Jeffrey S. Damerall of Jeffrey S. Damerall LLC in St. Louis; the director was represented during arguments by Deputy General Counsel J. Andrew Hirth of the attorney general's office in Jefferson City.

Mumtaz Lalani operates a business called Mid America Wholesale through which he buys tobacco products other than cigarettes from other wholesalers and then resells those products to Missouri retailers. The director of revenue assessed taxes, interest and penalties against Lalani for these sales. The director determined that Rock Bottom Wholesale, which sold the products to Lalani, had not paid taxes on the products because Rock Bottom claimed Lalani, as another wholesaler, was responsible for paying taxes. Lalani sought review from the administrative hearing commission, claiming that as long as the products were purchased and resold in Missouri, he should not be assessed taxes. The commission found that Lalani was responsible for taxes and interest. Lalani appeals.

Lalani argues the commission erred in finding he must pay taxes on the non-cigarette tobacco products. He contends he is not the “first purchaser” of these products as defined in section 149.160, RSMo. Lalani asserts that he purchased the products from a Missouri wholesaler and did not sell the products as a manufacturer or wholesaler. He further argues that section 149.160 is unconstitutional because the law subjects him to a tax of uncertain amount without notice. Lalani contends the director is prohibited from collecting tax revenues from him because Lalani followed the director’s instructions regarding taxation. He asserts the director stated that Lalani would not be taxed if he conducted his business consistent with those instructions.

The director responds that the commission correctly found Lalani was required to pay taxes on other tobacco products. The director argues that Lalani made the first sale within the state as defined by section 149.011(5), RSMo. The director contends that Lalani failed to ask what the manufacturer’s invoice price was when he purchased the products from Rock Bottom. The director asserts that section 149.011(5) and 149.160.1 should not be found unconstitutionally vague solely because Lalani failed to inquire as to the price. The director argues Lalani presented insufficient evidence to prove the tax assessment is inconsistent with prior representations made by the director’s staff.

SC94097_Lalani_brief.pdf

SC94097_Director_of_Revenue_brief.pdf

SC94097_Lalani_reply_brief.pdf

SC94230
Meagan Garland v. Jeffrey Ruhl, State of Missouri, Department of Social Services, Family Support Division
St. Charles County
Attorney fees in child support case
Listen to the oral argument:

SC94230.mp3
Garland was represented during arguments by Thomas J. Henderson of Anderson Henderson LLC in St. Louis; the division was represented during arguments by Solicitor General James R. Layton of the attorney general's office in Jefferson City.

The department of social services’ family support division entered an administrative order ordering that Jeffrey Ruhl, the father of Meagan Garland’s child pay $357 per month in child support as well as health insurance. The order also required a change to the child’s birth certificate. Garland sought review of the order, claiming the division failed to follow Rule 88.01 and issued an order that the father’s name be listed as the “mother” on the child’s birth certificate. Garland and the father agreed as to child support, and the circuit court entered a judgment ordering the father to pay $500 per month in support as well as health insurance; the court also ordered correction of the birth certificate. Garland filed a motion for attorney fees and costs against the division. The division filed a motion to dismiss, which the circuit court granted. Garland appeals.

Garland argues the circuit court erred in dismissing her motion for attorney fees. She contends the court misapplied section 536.087, RSMo, in finding that she was not a prevailing party to the proceeding. Garland asserts that her motion stated sufficient evidence to prove that she obtained a favorable judgment in the proceeding and should be entitled to relief under the statute. She argues she showed she prevailed in obtaining a higher amount of child support than that ordered by the division and in getting the birth certificate corrected.

The division responds that the circuit court correctly dismissed Garland’s motion for attorney fees. It argues that section 536.087 only applies to parties who prevail in certain contested cases. The division contends that Garland was not party to an agency proceeding as she argues. It asserts that Garland instead was party to a proceeding to determine whether she was entitled to a benefit and the establishment or rate of that benefit. The division argues that Garland also did not prevail against the agency in her proceeding. It contends that she resolved the dispute privately and obtained judicial confirmation of that resolution.

SC94230_Garland_brief.pdf

SC94230_State_brief.pdf

SC94230_Garland_reply_brief.pdf

SC94181
In re: Naren Chaganti
St. Louis County
Attorney discipline
Listen to the oral argument:

SC94181.mp3
The chief disciplinary counsel was represented during arguments by Special Representative Marc A. Lapp of the Region X Disciplinary Committee in St. Louis; Chaganti, of Town & Country, represented himself during arguments.

St. Louis County attorney Naren Chaganti is the sole owner and officer of Whispering Oaks Residential Care Facility Management Company. Following an incident with an independent heating and air conditioning contractor who also was employed by another company, Chaganti sued the contractor for damages. The suit was dismissed when Chaganti failed to pursue it. Following an investigation into a complaint filed by the contractor’s attorney, a disciplinary hearing panel determined that Chaganti violated Rule 4-4.2 regarding unauthorized communication with a represented party and Rule 4-8.4(d) regarding conduct that is prejudicial to the administration of justice. It found that, despite having been warned by opposing counsel not to contact the contractor directly, Chaganti – in his capacity as counsel for Whispering Oaks – threatened the contractor in a letter addressed solely to the contractor by claiming he would refile the case and include the contractor’s employer in the suit. The chief disciplinary counsel asks this Court to suspend Chaganti’s law license for at least six months.

The chief disciplinary counsel argues Chaganti communicated about the subject matter of his representation with an individual whom Chaganti knew was represented by another lawyer. The disciplinary counsel contends Chaganti committed acts that were harmful to the administration of justice. The disciplinary counsel asserts this Court should suspend Chaganti’s license with no ability to apply for reinstatement for at least six months.

Chaganti responds that he was only representing his own interests and not acting as an attorney for Whispering Oaks in his actions. He argues that a comment to Rule 4-4.2 allows opposing parties to communicate directly. Chaganti contends there is insufficient evidence to prove that opposing counsel continued to represent the contractor after the action was dismissed. Chaganti argues that the disciplinary counsel relied solely on the opposing counsel’s testimony and self-serving document to prove his complaint against Chaganti. Chaganti contends that he complied with the rule while litigation was pending and that the rule permitted his later communication. Chaganti asserts that, if this Court determines Rule 4-4.2 applies to individuals representing their own interests, then it unconstitutionally violates his rights to due process and equal protection.

SC94181_Chief_Disciplinary_Counsel_brief.pdf

SC94181_Chaganti_brief.pdf

SC94181_Chief_Disciplinary_Counsel_reply_brief.pdf

SC94203
In re: Lawrence J. Fleming
St. Louis County
Attorney discipline
Listen to the oral argument:

SC94203.mp3
The chief disciplinary counsel was represented during arguments by Shannon L. Briesacher of the chief disciplinary counsel's office in Jefferson City; Fleming, of St. Louis, represented himself during arguments.

St. Louis County attorney Lawrence Fleming has been practicing law for more than 45 years but has been on probation since June 2011 for violating certain rules of professional conduct. The chief disciplinary counsel’s office has been involved in a lengthy investigation of several clients’ complaints against Fleming for events that occurred since 2004. Following a May 2013 hearing, a disciplinary hearing panel specifically found that Fleming was not credible, determined that Fleming was guilty of 53 separate violations of the code of professional conduct and recommended that Fleming be disbarred. Fleming rejected the panel’s findings. The chief disciplinary counsel now asks this Court to disbar Fleming.

The disciplinary counsel argues Fleming knowingly engaged in repeated acts of dishonesty in violation of Rules 4-8.1(a), 4-3.3(a) and 4-8.4(c) in matters involving two clients. With respect to one client, the disciplinary counsel contends Fleming made misrepresentations to his client about actions and other matters related to the client’s cases and then told the chief disciplinary counsel’s office that he had not made any misrepresentations to the client; told a court he had his client’s permission to dismiss an appeal when he did not; and told his client he had deposited the client’s inheritance in an interest-bearing account but failed to transfer it out of a non-interest-bearing account. With respect to the second client, the disciplinary counsel asserts Fleming guaranteed he would not charge the client for services for which he later billed the client. The disciplinary counsel argues Fleming charged and collected unreasonable fees in violation of Rule 4-1.5(a) by collecting substantial attorney fees despite performing little or no discernable work. The disciplinary counsel contends Fleming violated Rules 4-1.1, 4-1.2 and 4-1.3 by failing to enter appearance for months after agreeing to do so, failing to file documents or institute actions after being hired and directed to do so, dismissing an appeal without his client’s permission, and failing to respond to court orders or motions filed by opposing parties. The disciplinary counsel asserts Fleming violated Rule 4-1.4(a) by failing to give proper advice to one client and failing to communicate adequately with another client. The disciplinary counsel argues Fleming also violated Rule 4-1.15(c) and (d) by holding a large sum of client money for almost a year in a non-interest bearing account and depositing unearned fees in his personal account instead of his client trust account. The disciplinary counsel contends Fleming violated Rule 4-1.16(d) by failing to return client files in a reasonable time after his representation of the client ended and despite his former client’s repeated requests that he do so. The disciplinary counsel asserts it is appropriate for this Court to disbar Fleming because Fleming knowingly deceived clients with the intent to benefit himself, intentionally made a false statement to a court, knowingly engaged in conduct violating the duty owed to the profession; and knowingly failed to perform services for a client or engaged in a pattern of neglect with respect to client matters.

Fleming responds that, while some disciplinary action is warranted, disbarment is grossly excessive and that, instead, this Court should refer the matter to a special master with experience in criminal procedure and post-conviction issues for the master’s review of the case and recommendation as to an appropriate disposition. He argues that there was an excessive delay in the time it took the chief disciplinary counsel’s office to investigate the complaints against him and that the investigator appointed was unfamiliar with Missouri laws regarding conditional release and federal laws regarding post-conviction remedies. With respect to one client, Fleming contends there were unique circumstances surrounding the client’s incarceration and eligibility for conditional release or parole that led Fleming to determine that aggressively pursuing the client’s case might have jeopardized the client’s chances of release. With respect to a second client, Fleming asserts it was necessary for him to wait for a particular opinion from the United States Supreme Court before filing any actions on behalf of the client. Fleming responds that he gave his client a contract explaining the nature of the non-interest-bearing trust account; that he communicated consistently with his client regarding case filings; that certain complications delayed the distribution of the client’s father’s estate; and that, once the client received the inheritance money, Fleming made many disbursements from the client’s inheritance money as directed by the client, and he provided his client with a ledger of these disbursements. Fleming argues he communicated consistently with his clients regarding case filings and asked for the name of a new attorney to whom the client’s files could be sent. To the extent his clients have disputes over his legal fees, Fleming contends these issues should be resolved by a fee dispute committee rather than used as grounds for discipline. Fleming further asserts that none of the complaints giving rise to this case occurred since he has been on probation.

SC94203_Chief_Disciplinary_Counsel_brief.pdf

SC94203_Fleming_brief.pdf

SC94203_Chief_Disciplinary_Counsel_reply_brief.pdf