Case Summary for September 8, 9, and 15, 1999

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Case Summary for September 8, 9, and 15, 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.

SUPREME COURT OF MISSOURI
DOCKET SUMMARIES
September 1999

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Wednesday, September 8, 1999
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81172
Blue Cross and Blue Shield of Missouri, etc., v. Jay Angoff, etc., et al.
Cole County
Health care corporation's reorganization

After the Director of the Department of Insurance's approval, Blue Cross and Blue Shield of Missouri, a nonprofit corporation, reorganized in 1994. It transferred its managed care and certain other assets to a for-profit subsidiary, RightCHOICE Managed Care, Inc. for its shares, then publicly offered additional shares. The Director and attorney general challenged the reorganization and subsequent activities as no longer serving its non-profit purpose. Blue Cross requested declaratory and injunctive relief against the Department of Insurance and its director and the attorney general. Defendants counter-claimed. This appeal involves four orders, the first in Blue Cross' favor and the remaining for the director and attorney general. Blue Cross appeals. The director cross-appeals.

Blue Cross contends: (1) The trial court erred in finding Blue Cross exceeded and abused it authority under Chapters 355 and 354. A nonprofit corporation may change its operations as long as it does not do business for profit or pervert its statutory purposes. Blue Cross did not do business for profit or violate the non-distribution constraint. It had express statutory authority to reorganize and form the for-profit subsidiary. The Blue Cross Board determined, in its business judgment, that the reorganization was necessary. Blue Cross' assets continued to serve its health services purposes.

Blue Cross further contends: (2) The director's counterclaims regarding Blue Cross' operation after the reorganization are really an attempt to reconsider his approval of the reorganization. He lacks authority to reconsider his approval of the reorganization because no statute grants him such authority. (3) The state is estopped from challenging the reorganization because the director approved it, and in reliance on the director's approval, Blue Cross reorganized and RightCHOICE's public shareholders invested $33 million. (4) The court lacked jurisdiction over the attorney general’s counterclaim seeking dissolution or related relief. The statutory liquidation remedies available to the director are exclusive and preempt any action by the attorney general seeking liquidation, including under section 355.726. (5) The attorney general cannot assert a claim under section 355.726, which requires showing multiple wrongful acts, because the attorney general challenges only the reorganization, whereas the statute requires showing Blue Cross continued to exceed or abuse its lawful authority. (6) Section 355.141 is the exclusive vehicle for bringing certain kinds of challenges, and that section is not available here. (7) The trial court should have permitted Blue Cross to add to the summary judgement record to respond to newly articulated, erroneous legal theories.

The attorney general responds: (1) Blue Cross' transfer of the majority of its business and virtually all its most valuable assets to a for-profit subsidiary, and its continued subjugation of Blue Cross' non-profit purposes to the for-profit operation of its subsidiary, constitute an abandonment of its non-profit purposes and a continuing excess and abuse of its lawful authority.

(2) The attorney general cannot be estopped from bringing an action by the action or inaction of other state officials. And there can be no estoppel without affirmative misconduct by the government, which was not shown. (3) The attorney general can proceed under section 355.726 because his claim is not a delinquency claim preempted by section 375.1154. Even if it were a delinquency claim, section 355.726 is concurrent with, not preempted by, the director's authority to bring a claim. (4) Blue Cross has continued to exceed and abuse its authority. Its abandonment of its non-profit purposes and engagement in for-profit activity are ongoing. (5) Section 355.141 does not bar the attorney general's action. The attorney general does not challenge the validity of Blue Cross' actions, only their legal effect, and the attorney general is not seeking to enjoin an act where a third party has acquired rights. (7) Blue Cross' motion to supplement the record was untimely, and the evidence it sought to submit would not have been material to the court's judgment.

Like the attorney general, the director also responds to Blue Cross' appeal: (1) Blue Cross' reorganization and its consequences contravened Blue Cross' statutorily permissible purposes. Blue Cross cannot use a for-profit subsidiary to circumvent its permissible purposes.

(2) The director's approval of Blue Cross' reorganization plan cannot prevent the director from asserting Blue Cross' current operations violate Chapter 354 or 355. The director's assertions are not a reconsideration of the reorganization but, rather, are a part of his mandated duties to enforce such laws. (3) The court properly refused to estop public officials from enforcing the law. Blue Cross did not show misconduct on the director's part, a prerequisite for estoppel against the government. (4) The court had jurisdiction to hear the attorney general's counterclaims. (5) The attorney general has demonstrated multiple wrongful and continuing acts by Blue Cross and shown Blue Cross continues to exceed or abuse its statutory authority and purposes. (6) The attorney general may pursue an ultra vires challenge asserting Blue Cross violated its statutory purposes under chapter 355. (7) Blue Cross' belated attempt to supplement the summary judgement record came after its numerous representations that the court possessed ample material to rule on the motions, and Blue Cross' proposed material was irrelevant.

Additionally, the director, who cross-appealed, contends the trial court erred in granting summary judgment to Blue Cross on the director’s affirmative defense of fraud or misrepresentation and an issue of the director's standing. The director contends: (1) Blue Cross used fraud or misrepresentation to procure the director's approval of the reorganization, so the director has authority to revoke or change its decision. (2) Sections 354.010-354.380 authorize the director to remedy a health services corporation's violations of any state laws, so the director has standing to assert his action.

Blue Cross countered the director's cross-appeal, arguing: (1) The director's allegations of fraud and misrepresentation were insufficient and factually unsupported. (2) The attorney general, not the director, possessed the sole authority to assert the Chapter 355 claim that the director seeks to assert.

Consumers Union of U.S., Inc. and Community and Catalyst filed an amicus curiae brief in support of the state. Consumers Union states: (1) The operation of RightCHOICE makes Blue Cross unable to comply with the limits on nonprofit corporations. (2) Blue Cross altered its nonprofit status by giving its for-profit subsidiary the majority of its assets and allowing the subsidiary to retain all the revenues and profits.

The League of Women Voters of Missouri, Reform Organization of Welfare, Missouri Association for Social Welfare, et al. filed an amicus curiae brief. They submit: (1) Blue Cross exceeds its authority under the nonprofit laws because for-profit activities have become the dominant purpose of the organization. (2) Blue Cross converted to for-profit status without transferring its assets to a charitable foundation dedicated to health purposes.

81653
State of Missouri v. Bilah Ralls
Jackson County
Trafficking drugs II; 10 years
Drug Court Commissioner challenge

Bilah Ralls was convicted of second degreed drug trafficking after a jury trial before a drug court commissioner. The commissioner sentenced him, and the circuit judge confirmed the all the commissioner's judgments of the week. Ralls appeals.

Ralls argues the statute creating drug court commissioners is unconstitutional because: (1) It violates Article V, section 25(a), which requires Jackson County judicial vacancies to be filled by the nonpartisan court plan (ie. governor appointing one of three persons nominated by a nonpartisan commission). (2) Article V, section 1 does not confer judicial power on a drug court commissioner. Thus, the statute purporting to vest judicial power in a commissioner delegates judicial authority and violates the separation of powers in Article II, section 1. The fact that the circuit judge confirms the commissioner's actions each week by "rubber stamp" does not cure the defects.

The state contends the appeal should be dismissed because: (1) Ralls cannot appeal the commissioner's order. The order is not "signed by a person selected for office in accordance with and authorized to exercise judicial power by article V," ie. not signed by a judge, so it is not a final, appealable judgment. (2) Even if Ralls had appealed instead from the circuit judge's confirmatory judgment, the claim should still be dismissed. Ralls' sole claim--that the statute empowering the commissioner to preside at his trial violated the constitution--was waived when Ralls went to trial before the commissioner without objection. Finally, the statute only gives the commissioner power subject to the circuit judge confirming or rejecting the commisioner's actions, so the statute is constitutional, regardless of whether Ralls believes the judge properly exercised his oversite.

81391
Roy Mendelsohn, M.D. v. State Board of Registration for the Healing Arts
St. Louis County
Constitutional challenge to statute related to discipline of professional license

The State Board of Registration for the Healing Arts received complaints about psychiatrist Roy Mendelsohn. The board and Mendelsohn agreed to discipline, including probation, without proceedings before the Administrative Hearing Commission. A court decision in another case held the board lacked authority to impose discipline absent Commission review. The legislature, through section 621.045, granted the board authority to do so, specifying a procedure for such disciplinary agreements. In compliance with the statute, Mendelsohn received a letter informing him the statute had been passed and that he could contest the discipline within six months, but he filed no contest. When the board found Mendelsohn violated his probation, it revoked his license. Mendelsohn challenged the statute and the board's action. The circuit court denied relief. He appeals.

Mendelsohn contends: (1) Section 621.045.5 is unconstitutional. It applied retrospectively in violation of Article I, section 13. Specifically, it revoked his right to an independent administrative review of professional complaints as a condition of disciplinary action. (2) The board exceeded its statutory authority by formulating the charge, lodging it, prosecuting it, and judging it, despite statutes requiring an independent administrative hearing and the absence of a statute authorizing such a proceeding. (3) The order suspending his license was not supported by competent and substantial evidence on the whole record and was arbitrary and capricious.

The board argues: (1) Section 621.045.5 is constitutional. It did not impair a vested or substantial right. Mendelsohn had no right to be free from the discipline he agreed to in his settlement and, later, elected not to challenge via the law. (2) Mendelsohn's challenge to the board's statutory authority to hold the probation violation hearing is moot. After the hearing, legislation clarified the board's authority, such that the board would hear any re-filed complaint. (3) This court cannot review Mendelsohn's challenge to circuit court error. The appellate court reviews the agency action, not the court decision. In any event, the board acted within its jurisdiction in hearing the probation violation. It is authorized to determine whether Mendelsohn violated probation conditions. (4) Substantial evidence supported the board's decision to revoke Mendelsohn's license. He violated his probation over an extended period.

81165
State of Missouri v. John E. Winfield
St. Louis County
Murder I (two counts), armed criminal action (four counts), assault I (two counts); death, four consecutive 75 year sentences, life, 15 years

John Winfield shot the mother of his children, who he discovered had begun another relationship, permanently blinding her. He shot two women in the apartment with her, killing them. A fourth woman ran. He hit a man in the apartment with his gun after a struggle. In addition to other convictions, the jury recommended, and the court sentenced him to, the death penalty for the murders. He appeals.

Winfield argues: (1) The prosecutor should not have been allowed to argue that Winfield would have shot the children in the apartment if he had not run out of bullets. There was no evidence he intended or attempted to harm the children. The argument appealed purely to the jury's passions, resulting in the death sentences.

(2) The trial court should have allowed Winfield to cross-examine a police officer about statements the man made to another officer, namely that the man chased Winfield, since at trial the man denied chasing Winfield. The cross-examination was not offered to prove the man chased Winfield--hearsay--but, rather, to impeach the man's credibility, since he also testified to inflammatory statements Winfield made to the victims before shooting them and contended Winfield sought to kill witnesses and would have killed him if the gun had not been empty. (3) The court should have suppressed statements Winfield made to an officer, because Winfield did not knowingly, intelligently, and voluntarily waive his rights. There was no written, signed warning and waiver and no witnesses to a warning and waiver, and the officer had never before conducted a homicide interrogation. (4) Winfield's death sentences are excessive and disproportionate. The murders arose in the context of an emotional domestic conflict. The sentences were the product of the prosecutor's characterizing Winfield's acts as "cold-blooded." (5) The court erred in striking for cause a juror who initially expressed reservations about her ability to consider the death penalty but indicated she could consider it and would follow the law.

(6) The blinded victim should not have been allowed to testify to Winfield's prior abuse because the state did not have to prove it beyond a reasonable doubt with all the related protections. The testimony's prejudicial effect outweighed its probative value. (7) The trial court should have submitted instructions offering the alternative of voluntary manslaughter. The evidence supported this lesser charge because Winfield was enraged by events of the evening. (8) The court should have submitted an instruction listing the statutory and non-statutory mitigating circumstances, so as not to limit the jury's consideration of mitigating evidence that warranted sentences less than death. (9) The court should have severed the trials for homicide, assault and armed criminal action. They were not part of a common scheme or plan as provided in section 545.140. And section 565.004 requires that first degree murder be tried only with other first degree murder charges.

The state contends: (1) The prosecutor's statement that Winfield would have shot the children had he not run out of bullets was a reasonable inference from the evidence. Winfield tried to shoot two others. Winfield cannot show the argument had a decisive effect on the jury given the overwhelming evidence of his guilt.

(2) Winfield's attempt to have an officer testify about what a police report said that Johnson said to another officer was inadmissible "double hearsay" and not within any exception to the bar against hearsay. (3) Winfield knowingly and intelligently waived his rights. The trial court did not need to specifically so state; it implicitly did so by overruling his motion to suppress his statements. Even assuming error, it was harmless given the strong evidence of guilt. (4) The court should affirm the death sentences under its independent statutory review. (5) The court rightly removed a venireperson whose views would substantially impair the performance of her duties as a juror. She said she could not consider death, explaining that she was a nurse who had taken care of people her whole life.

(6) The evidence of prior abuse was admissible because it was relevant to the individualized sentencing determination that the jury had to make. (7) The trial court did not err in refusing to submit the lesser included offense instructions for voluntary manslaughter. The evidence did not show sudden passion arising out of adequate cause. Winfield said he did not know what he was feeling when he shot his victims. In any event, second degree murder charges were submitted, but the the jury found Winfield acted deliberately. Accordingly, there is no reason to believe the jury would have reduced Winfield's convictions had additional lesser included offense instructions been submitted. (8) There is no constitutional requirement that non-statutory mitigating evidence be listed in the penalty phase instructions. (9) Trying the charges together was proper. When the defendant is a prior offender like Winfield, first degree murder charges may be tried with other charges where joinder is lawful. Joinder was also proper because the murders and assaults were part of the same transaction.

Thursday, September 9, 1999
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81336
Wayne and Betty Gott, et al. v. Director of Revenue
Dent County
Revenue laws concerning enterprise zones

Wayne and Betty Gott (taxpayers) own shares in companies operating grocery stores in enterprise zones. The director of revenue changed the taxpayers' calculation of enterprise zone modifications (EAM) and tax credits (EZC), and the director recomputed the taxpayers' EZM after the department of economic development re-certified the respective EZM payroll factor percentages of facilities of both corporations. Following an administrative hearing commission (AHC) decision, the parties appeal. They dispute how to calculate EZM and EZC pursuant to chapter 135.

The taxpayers contend: (1) The director of revenue cannot recompute payroll factor fractions to determine EZM and EZC. Section 135.250 entrusts that determination to the director of economic development, and economic development's decision became final when it was not appealed to the AHC. (2) The AHC erred in ruling taxpayers' EZM and EZC are based on apportioned Missouri income rather than Missouri taxable income of their S Corporation. Under sections 621.189 and 621.193, the AHC's ruling is not authorized by law. Sections 143.451 and 143.471 prohibit S corporations and their shareholders from apportioning the corporations' income to determine the amount of Missouri taxable income of the corporation, and sections 135.110.2 and 135.220.2 require that modifications and credits to be based on Missouri taxable income.

The director claims the AHC correctly held: (1) The payroll factor used to calculate taxpayers' enterprise zone benefits may be recomputed. Section 135.220 gives economic development authority to recompute this factor. The corporation and taxpayers were entitled to protest and appeal to the AHC. The AHC had authority to redetermine the computation. And the recomputation was made necessary because economic development had relied on incorrect information supplied by the corporation in computing the original payroll factor. (2) Taxpayers must calculate their enterprise zone benefits based on apportioned Missouri income rather than on the entire income of the corporation. Section 135.220 limits enterprise zone benefits to Missouri taxable income attributed to the business within an enterprise zone. To calculate the amount earned within the enterprise zone, one must first begin with Missouri source income, which requires apportionment of the corporation's total income.

The director claims the AHC erred in: (1) allowing the taxpayers to include income from rentals and interest earned by the corporation in calculating benefits because section 135.220 limits enterprise zone benefits to Missouri taxable income earned by a taxpayer operating a business within an enterprise zone. The rental and interest income was not earned in the enterprise zone, nor was it earned within the ordinary course of the corporation’s grocery business in the enterprise zone. (2) not requiring taxpayers to claim a percentage of their deductions related to the amount of income they earned within the enterprise zone when calculating enterprise zone benefits because section 135.220 exempts from tax one-half of the Missouri taxable income attributed to the business within the enterprise zone. To accurately calculate taxable income and to further the purpose of the statute, the percentage of taxpayer’s deductions must be used to off-set the gross income of the corporation.

The taxpayers respond to the director's cross-appeal, submitting that the AHC did not err in: (1) allowing the taxpayers to include at least part of their interest and rental income in their benefit calculations. That determination is authorized by law, in that section 135.220 makes no distinction between ordinary income and passive income. (2) refusing to subtract the taxpayer's personal deductions from the S corporation's income to arrive at the corporation's Missouri taxable income. That determination is supported by section 135.220, which determines the Missouri taxable income of the S corporation as if it reported and paid Missouri taxes separately.

81375
Missouri Association of Counties, et al. v. Quentin Wilson, et al.
Cole County
Hancock refunds of section 30(b) revenues

The director of revenue collects certain motor vehicle sales taxes and fee increases (section 30(b) revenues). The treasurer distributes a portion to local governments. The Missouri Association of Counties, et al. sued to stop these distributions from being used to pay taxpayers refunds required by the Hancock amendment. The circuit court denied the counties relief. They appeal.

The counties contend: (1) The revenues are not part of "total state revenues" and, thus, are not subject to payment of the Hancock refunds. Instead, the moneys are local governmental revenues collected by the director to distribute to the local governments. (2) The method by which the state collects and distributes the money does not convert it to total state revenue. Statutes channeling collection through the state are ineffective where the constitution specifies that the revenues are to be sent directly to the local governments as "non state revenues." (3) The constitution provides monies under article IV, section 30(a) and 30(b) must be treated the same. Section 30(a) revenues are not part of total state revenues, so neither are 30(b) revenues. (4) Using these monies to pay the Hancock refund would violate article X, sections 16 and 21, by reducing monies allocated to local governments to carry on mandated activities and services.

The director responds: (1) The revenues are part of "total state revenues." The revenues were received into the state treasury and subject to appropriation, fitting the definition in article X, section 17(1) and passing the test set forth in a prior court decision, Buechner. (2) The revenues do not fit the definition of "non-state" funds. They are not imposed by political subdivisions, distributed by the department of revenue, or expressly designated "nonstate funds." (3) The director properly processed the funds. Article III, section 36, section 33.080, and section 136.110 each mandate that all the revenue received by the state shall go into the state treasury, and the 30(b) revenues are received by the state and deposited in the treasury. (4) The 30(a) and (b) revenues are distinct. (5) There is no violation of article X, section 16 and 21. The counties have not shown an increased activity or reduction of the state-financed portion of an existing activity. Also, counties are not taxpayers and, therefore, have no standing to make this claim.

81422
State of Missouri v. Rory L. Griggs
Buchanan County
Statutory sodomy I, 16 years

Rory Griggs was convicted of sodomizing his elementary-age nephew. Griggs appeals.

Griggs contends: (1) The state failed to produce sufficient evidence to permit a rational trier of fact to find Griggs guilty beyond a reasonable doubt. The evidence consisted solely of hearsay testimony of the victim’s out-of-court statements. The statements were so inconsistent and contradictory as to deprive them of any probative force, and they were not corroborated. Although the victim originally alleged fellatio, he recanted. (2) The court should have excluded a witness' testimony that Griggs made the victim “perform fellatio” because those were not the victim’s words, and the state failed to comply with section 491.075.3 by not disclosing these statements before trial and giving Griggs the opportunity meet them. (3) In closing argument, the prosecutor improperly asked the jury to convict Griggs to prevent future threats to the victim. The prosecutor told the jury the nephew was concerned he would be exposed to his abuser, leading the jury to convict Griggs for reasons irrelevant to his guilt.

The state argues: (1) The victim's numerous out-of-court statements graphically depicted the sodomy. The statements were admitted as evidence under section 491.075 and supported the conviction. This evidence did not become insufficient merely because the boy's parents were briefly successful in coercing him into retracting his allegations. (2) The witness' testimony that Griggs made the victim "perform fellatio" was admissible. The nature of the victim's statements was in the witness' session notes, which were disclosed to Griggs in a discovery response. And Griggs stipulated that the victim's out-of-court statements would be admissible if disclosed. (3) The prosecutor's closing argument did not refer to Griggs' future dangerousness. Instead, the prosecutor's statement--that the victim was concerned he would be exposed to Griggs again--explained why the victim may have recanted.

80717
State of Missouri v. Charles W. Armentrout III
St. Louis City
Murder I, robbery I, armed criminal action (2 counts); death, 3 consecutive life sentences

Charles Armentrout beat his grandmother to death with a souvenir baseball bat. He tried to represent himself but have the public defender commission pay the expenses of his defense. While awaiting trial, he escaped from city jail but was recaptured. Among other charges, the jury found Armentrout guilty of first degree murder and recommended the death penalty, which the court imposed. Armentrout appeals.

Armentrout contends: (1) The circuit court failed to require the public defender system to fund depositions, expert witnesses and other litigation services unless Armentrout waived his right to self-representation and allowed the public defender system to represent him. Armentrout was forced to trade one constitutional right, namely self-representation, for another, namely litigation support services for indigents.

(2) The court should not have appointed counsel to represent Armontrout. The public defender system had a conflict of interest. It disputed paying for support services and, thus, was involved in litigation against Armontrout. In preparing for trial, his appointed counsel had to choose between loyalty to client or to superiors. (3) The court undermined Armentrout's right to self-representation by conducting ex parte conferences with counsel. As a party representing himself, he had the right to participate in the judge's conference with the public defender regarding the public defender’s responsibility for funding depositions, experts and investigation. (4) The circuit court should have ordered a new trial when Armentrout was denied the right of counsel on his request. Armentrout requested that appointed counsel assist in preparing the motion for a new trial, and the court approved the request, but counsel did not assist. (5) The extreme security measures--shackling, wearing a prison uniform, mass of security personnel following him, using a certain pencil, having a gag and tape in view, otherwise restricting his movement--infringed on his presumption of innocence and were prejudicial indications of judicial accusation.

(6) The shackling and other security measures effectively denied Armentrout the right of self-representation. (7) The circuit court abused its discretion in calling up the motion to suppress video-taped and other statements between 7:30 p.m. and 8:00 p.m., after jury selection, causing Armentrout involuntarily to waive his constitutional objections to the statements. (8) The circuit court abused its discretion in overruling his motion for a bill of particulars. The bill of particulars would have fleshed out the accusations of the sparse charging instrument and was particularly necessary here, where the usual means of discovery and depositions to flesh out the accusations were refused and delayed by the public defender. (9) Amentrout should have been permitted to question potential jurors on whether they thought the cost of housing him for the rest of his life would lead them to favor the death penalty over life without parole. (10) The circuit court abused its discretion in denying the motion to preserve fingernail scrapings from the decedent. Those scrapings would have shown that someone other than Armentrout was the aggressor with whom the decedent struggled.

(11) The state improperly failed to disclose its handwriting expert’s testimony that the decedent’s signature contained a tremor. The prosecution used the expert opinion to buttress its motive theory and make Armentrout appear more blameworthy. (12) The court should have excluded a witness' hearsay testimony that the decedent feared Armentrout would kill her. The prosecution knew for months before trial that the witness would so testify but did not disclose it to Armentrout in response to his discovery request. He found out at depositions in the weeks before trial. (13) The witness' testimony that the decedent feared Armentrout would kill her was hearsay and exceptionally prejudicial. (14) The circuit court improperly overruled objection to the prosecutor’s penalty phase closing argument that Armentrout had to present mitigating circumstances. Armentrout did not have to present any mitigators for the jury to decide on life without parole. The prosecutor's statement, and the court's ratification, placed a burden on Armentrout that does not exist. (15) The state did virtually everything it could to excite passion, prejudice and other arbitrary factors against Armentrout to secure the death penalty.

The state argues: (1) The court did not abuse its discretion when it denied Armentrout's periodic requests to waive his right to counsel. Armentrout did not unequivocally waive his right to assistance of counsel. He repeatedly and voluntarily requested that he be allowed to represent himself with counsel's assistance.

(2) The court properly allowed Armentrout to be tried with the assistance of public defenders who provided the funds he needed for his defense. This did not deny him his right of self-representation because he wanted their assistance. His claim that they had a conflict of interest is a claim of ineffective assistance that is not cognizable on direct appeal, was waived when he indicated he wanted to proceed with their assistance, and is without merit because he failed to demonstrate a conflict adversely affected the representation. (3) The trial court did not deny Armentrout's right to self-representation by meeting with Armentrout's counsel. One of the meetings did not involve his counsel. Armentrout authorized his counsel to act on his behalf. He kept control over his representation. The jury was not given the impression Armontrout was not representing himself. (4) Armontrout's claim that counsel did not assist him in filing a motion for a new trial is an ineffective assistance of counsel claim that is not cognizable on direct appeal. In any event, the record shows counsel did assist him with his new trial motion. (5) & (6) The security measures were justified by Armentrout's escape and attempted escape, the charges' seriousness, the murder's brutality, Armentrout's record, and the fact that he had permission to walk around the courtroom as he represented himself.

(7) Armentrout repeatedly waived his motion to suppress his videotaped confession. He abandoned on appeal any claim his confession was involuntary. Armentrout's motion to suppress was without merit. (8) Armentrout abandoned his claim for a bill of particulars by failing to cite any relevant case law. The information sufficiently informed him of the particulars of the offenses. He was not prejudiced without the bill of particulars. (9) Questioning potential jurors about whether they would lean toward death based on the costs of incarceration for life was irrelevant. It could have misled the venire into believing the costs and benefits of the death penalty were proper considerations. Armentrout was not prejudiced by eliminating the question. (10) There is no evidence the state destroyed fingernal scraping or acted in bad faith if the samples were consumed in testing. From Armentrout's failure to raise the claim at trial, he was either given a sample or lost the desire to test before trial.

(11) Armentrout waived his claim that the handwriting expert's testimony was not disclosed by failing to raise it at trial. There is no evidence of a discovery violation. Armontrout failed to prove manifest injustice resulted from such violation. (12) Witness testimony that the victim said she feared Armentrout was admissible. No discovery violation occurred. The state disclosed the witness' similar statement in a police report. The state and was not required to disclose non-written or non-recorded statements. This statement was also made at a pre-trial deposition. (13) The witness' hearsay testimony was admissible under the doctrine of curative admissibility; it responded to hearsay statements of the victim that Armentrout had elicited. The statements are also admissible under the state of mind exception to the hearsay rule. Armentrout cannot complain of the lack of a limiting instruction because he did not request one. (14) The prosecutor did not argue to the jury that Armentrout had to present mitigating evidence and did not cause the jurors to believe they had to impose death if no mitigators were adduced. No manifest injustice resulted in light of the explicit instructions on this issue and that there was overwhelming evidence Armentrout deserved the death penalty. (15) The sentence passes the Supreme Court's independent statutory review.

Wednesday, September 15, 1999

81355
Greenbriar Hills Country Club v. Director of Revenue
St. Louis County
Right to attorney fees in revenue litigation

Greenbriar Hills Country Club in Kirkwood prevailed in a case where the Director of Revenue sought to impose sales tax on the club's monthly service charge to its members applied in lieu of tipping. The club now seeks attorney fees under sections 536.085-87, which provide for fees and expenses for parties who prevail in litigation against the state if the state's position was not substantially justified. The Administrative Hearing Commission denied fees and expenses, ruling the director's position was substantially justified. The club appeals.

The club argues: (1) The director's position was not substantially justified because it was contrary to her own rule, which was never repealed. The club was forced to bear the cost of establishing the state's public policy.

(2) The AHC's decision to deny fees was based on the "dues theory," which the director waived when she failed to include it in her brief to the court in the underlying case. Accordingly, she cannot resurrect the theory to establish substantial justification in this fee litigation.

The director responds: (1) The AHC did not have jurisdiction to consider an application for fees. Section 136.315 exclusively governs the application for fees in tax cases. The club filed its claim only under section 536.087. The club did not fall under the definition of a "party" entitled to fees under section 136.315. Alternatively, the AHC did not have jurisdiction because the club filed its claim more than 30 days after it prevailed in the underlying AHC proceeding.

(2) The director's position was substantially justified. Its position that the service charge was subject to sales tax was reasonable and in good faith. (a) The director's rule applied to tips on food or beverages, not to periodic service charges like the club's that applied regardless of whether any purchases were made. (b) The director's alleged repudiation of this rule was irrelevant and applied only to the facts of the case and only to the extent that it conflicted with statutes. (c) The AHC adopted the director's interpretation of the sales tax law. (d) The Supreme Court held the statutes were in conflict and were fairly open to two interpretations. (e) The director's failure to subsequently repeal the rule is irrelevant to whether her position before the AHC was reasonable.

81468
Oak Bluff Partners, Inc., v. Robert E. Meyer
St. Louis County
Real estate dispute

Pursuant to a settlement of numerous claims between them, Meyer transferred his ownership in Oak Bluff condominium project at Lake of the Ozarks to Oak Bluff in exchange for payments, secured by a deed of trust. When Meyer declared a default of the deed of trust, Oak Bluff sued. The court entered judgment on the jury’s verdict for Meyer on claims for breach of contract and punitive damages, and for Oak Bluff on a conspiracy claim.

Meyer appeals the judgment against him for conspiring to deny Oak Bluff's right to redeem the property by refusing tender of the amount necessary to redeem the property. Meyer argues: (1) He was entitled to receive full satisfaction (including attorney fees) of Oak Bluff's obligations under the deed of trust. Therefore, he and his attorney/the trustee did not commit a wrongful act by refusing to release the deed of trust until Oak Bluff paid the attorney fees. (2) The trial court erroneously instructed the jury to find Meyer guilty for doing what he was legally entitled to do under the deed of trust, namely, demand full satisfaction, including attorney fees, from Oak Bluff before releasing its security interest. (3) Oak Bluff failed to pursue a statutory remedy under section 443.130, which is Oak Bluff's only way to recover money damages. No common law cause of action exists for intereference with the right ot redeem.

Oak Bluff responds that the court rightly entered judgment for Oak Bluff on the conspiracy claim because: (1) Meyer and his attorney/trustee agreed to deny Oak Bluff's right to redeem by requiring Oak Bluff to pay attorney fees that were not due. The provision relating to attorney fees violated section 443.400 because it did not provide for a certain sum or way fees could be calculated. (2) The court properly instructed the jury to find Meyer guilty of conspiracy if he agreed to deny Oak Bluff the right to redeem unless it paid attorney fees. Meyer was not entitled to the fees under the settlement agreement or deed of trust. (3) Section 443.400 provided Oak Bluff with statutory rights that Meyer, with his attorney, violated by requiring the unlawful attorney fees.

Oak Bluff also cross-appeals, arguing the trial court erred in not granting a directed verdict on the breach of contract claim because Meyer admitted he breached his contractual obligations by declaring a default and accelerating the obligations prior to the time the payment from Oak Bluff was due. Oak Bluff's statutory right of redemption cannot be conditioned upon payment of attorney fees based on a deed of trust that does not specify a sum or percentage on which those fees might be ascertained. A deed of trust cannot impose payment obligations that are not in the document serving as a note.

81487
Odegard Outdoor Advertising, LLC v. The Board of Zoning Adjustment of Jackson County
Jackson County
Billboard permit request and code challenge

In 1993, Odegard Outdoor Advertising obtained special use permits for the continued placement of its billboards in Jackson County for three years. In 1994, a new code was adopted. When Odegard sought permits in 1996, permit and variance requests were denied. Odegard appealed to the circuit court, which found that the code was unconstitutional. Jackson County's board of zoning adjustment appeals.

The zoning board submits: (1) Odegard waived any constitutional challenge by not raising it at the first opportunity, which would have been when the 1993 decision was made. In any event, the ordinance is constitutional. After the time ran on the 1993 special use permit, Odegard had no property right in the continued placement of the billboards. Further, the zoning board's denial of a variance does not rise to a Fifth Amendment taking. (2) Odegard's requested variances are not within the scope, intent, and purpose of the unified development code and may seriously injury the appropriate use of neighboring property in the area.

Odegard argues: (1) The code is unconstitutional as applied to Odegard. It provided for taking his property without just compensation. (2) Odegard already had a property right before 1993 when the permit issued. Therefore, the state-issued permit could not limit Odegard's non-conforming use. (3) The zoning board's decisions were not supported by competent and substantial evidence on the whole record.

81490
Daniel D. Phillips v. Lynn F. Fallen, Director, Division of Child Support Enforcement
Jackson County
Child support enforcement of sister state judgment

Daniel Phillips and Kendra Owen divorced in Kansas in 1993, and a child support order was entered relative to their one child. Owen and the child have lived in Washington for several years. Owen obtained a default judgment in Washington modifying the child support obligation. She seeks to enforce it through the Missouri Department of Social Services against Phillips, a Missouri resident. The circuit court affirmed Social Services' decision to enforce the order. Phillips appeals.

Phillips contends: (1) Social Services should have let Phillips attack the Washington modification as invalid because Missouri courts protect the right to make a collateral attack on such judgment in subsequent enforcement proceedings. (2) The Washington judgment is invalid because Washington lacked personal jurisdiction over Phillips, and Social Services should have considered that. (3) Washington also lacked subject matter jurisdiction over child support matters under the Uniform Child Custody Jurisdiction Act.

Social Services responds: (1) The Washington order is facially valid. Phillips failed to rebut the presumption of validity to which the Washington order was entitled under the full faith and credit doctrine. (2) Washington had personal jurisdiction over Phillips under Washington law because Phillips engaged in sexual intercourse in Washington and may have conceived the child there. (3) Washington had subject matter jurisdiction over the child support matter because the child was the "res" and domiciled in Washington.