Case Summary for October 7, 2004

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Case Summary for October 7, 2004

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

Thursday, October 7, 2004
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SC86046
J.H. Berra Construction, Co., Inc. v. Randy Holman, Assessor for Jefferson County, Missouri
Jefferson County
Tax assessment of heavy construction equipment

J.H. Berra Construction Co., Inc., builds highways, sanitary and storm sewers, water mains, and grading. On January 1, 2001, Berra, a St. Louis County-based corporation, had certain heavy construction equipment present at four construction project sites in Jefferson County on January 1, 2001. The Jefferson County assessor's office determined that some of the equipment had become a permanent fixture at various locations throughout the county and, accordingly, assessed personal property taxes for 2001 on Berra's equipment. The Jefferson County board of equalization upheld the assessment, and Berra sought review by the state tax commission, which limited its review to whether, on January 1, 2001, the equipment was legally "situated" in Jefferson County within the meaning of section 137.095, RSMo. Following a December 2002 hearing, the commission in June 2003 affirmed the assessment. Berra sought judicial review in the circuit court, which also affirmed the assessment. Berra appeals.

Berra argues the commission erred in affirming the assessed valuation of its construction equipment in Jefferson County and contends the commission's decision is not authorized by law or supported by competent and substantial evidence upon the whole record. It asserts that the construction equipment was not regularly kept in Jefferson County, had been moved there in November 2001 for construction projects, only was there temporarily and, therefore, was not "situated" in Jefferson County within the meaning of section 137.095, RSMo, on January 1, 2001. Berra argues the commission used an incorrect standard of requiring Berra to prove that its construction equipment was "continuously and habitually employed" in another county. It contends the correct standard was whether Berra's construction equipment was situated in Jefferson County within the meaning of section 137.095 by virtue of having a permanent presence in Jefferson County. It asserts the evidence before the commission did not establish such a permanent presence.

The assessor responds that the commission properly affirmed the assessed valuation of Berra's construction equipment in Jefferson County and that this decision is authorized by law and supported by competent and substantial evidence on the whole record. He argues the construction equipment had more than a temporary presence in Jefferson County and, in fact, was situated there on January 1, 2001, within the meaning of section 137.095.1, RSMo. He contends the commission used the correct standard to determine whether the equipment was situated in Jefferson County. The assessor responds that it was proper for the commission to examine whether Berra's construction equipment was "continually and habitually" in another county in the context of determining whether the construction equipment was "situated" in Jefferson County.

SC85905
Scott Shipman, St. Charles County Assessor v. Dominion Hospitality
St. Charles County
Tax classification of extended stay hotel

For the 2000 tax year, the St. Charles County assessor classified a hotel property owned in the county by Dominion Hospitality, LLC, entirely as commercial real estate. Dominion appealed to the county board of equalization, which affirmed the assessor's decision to place 100 percent of the property in the commercial class. Dominion then sought review from the state tax commission. Following a July 2002 hearing, the commission in September 2002 deemed the hotel an extended stay hotel and changed the property classification from 100 percent commercial to 60 percent residential and 40 percent commercial. The assessor sought judicial review from the circuit court, which affirmed the commission's decision. The assessor appeals.

The assessor argues the commission erred in holding that the hotel property is both residential and commercial property. He contends the property is used primarily for transient housing because the overwhelming majority of its guests use the hotel for fewer than 30 days and the others are not permanent residents as defined in the regulation. Accordingly, the assessor asserts that the hotel property falls outside the definition of residential property in section 137.016.1(1), RSMo. He argues this section excludes the hotel property from residential classification. He contends the immediate most suitable economic use of the property is as a hotel or other commercial enterprise. The assessor asserts that the evidence upon which the commission relied in making its determination is not competent or substantial and, in fact, is misleading. He argues the 60-percent residential/40-percent commercial percentages the commission adopted materially overstate the amount of extended stay business and materially understate the amount of transient business for which the facility primarily is used.

Dominion responds that the commission properly classified its hotel property as partly residential and partly commercial. It argues the predominant use of the property is by permanent residents. Dominion contends the commission properly classified the property as mixed-use property because it is used for more than one purpose, resulting in different classifications. It asserts that substantial evidence supports the commission's findings of fact and that the commission correctly applied the law. Dominion responds that the commission's holding that the property is 60 percent residential and 40 percent commercial is supported by competent and substantial evidence because the evidence accurately measures the property's two uses. Dominion argues the assessor introduced no evidence before the commission and, therefore, failed to carry his burden of proof.

SC85970
State ex rel. Ford Motor Company v. The Honorable Henry Westbrooke
Greene County
Duration of work-product doctrine and attorney-client privilege

In October 1999, Gary Anderson was killed in a single-vehicle accident involving a 1987 Ford Bronco II. His parents, wife and minor children brought a wrongful death suit against Ford Motor Company alleging design defects in the Bronco II. In July 2002, the Andersons served Ford with interrogatories and requests for production. In October 2002, Ford objected, refusing to produce certain documents under a claim of privilege. On three subsequent occasions, the Andersons filed motions to compel discovery. Following a March 2004 hearing, the court rejected Ford's claims of privilege and ordered the company to produce the information and materials requested. Ford now seeks a writ of prohibition from this Court.

Ford argues it is entitled to an order prohibiting the court from ordering it to produce certain consulting engineering materials. Ford contends these documents and information are subject to the attorney work-product doctrine and/or the attorney-client privilege. It asserts that these consulting engineering materials were created in preparation for litigation and, even though that products liability litigation is concluded, the privileges protecting the materials are perpetual in nature. Ford further argues that the court denied it due process when it summarily overruled its objections without examining the merits of either privilege claim or conducting an in-chambers review of the materials sought.

The Andersons respond that Ford is not entitled to a writ of prohibition. They argue that Ford's failure to request a record of the hearing below leaves nothing for this Court to review. They contend that Ford failed to produce any evidence supporting any element of the privilege claims asserted. The Andersons respond that the documents at issue do not qualify for work-product or attorney-client protection because they consist of reports prepared by engineers for safety reasons and not for litigation or for the purpose of legal advice. They assert that one set of tests has been shared with third parties, waiving any privilege that once might have existed. The Andersons argue that Ford failed to preserve its due process claim for review and that Ford received adequate process when it filed three briefs and attended two hearings before the court overruled its objections. They contend the documents at issue are not entitled to work-product protection because they are unrelated to the Andersons' wrongful death suit and were not created in preparation for this case. The Andersons assert that Ford violated the court's prior scheduling order when it filed a deficient privilege log more than a month after it was due.

SC85977
In re: John C. Shelhorse, IV
St. Louis
Attorney discipline

The chief disciplinary counsel alleges that St. Louis attorney John Shelhorse IV failed to comply with Missouri's continuing legal education requirements for the four reporting years between 1998 and 2002 despite multiple letters attempting to prompt him into compliance. Shelhorse admits he failed to comply for most of that time period. In March and May 2003, the regional disciplinary committee sent Shelhorse four letters requesting information about the reporting issue, but he failed to respond. The chief disciplinary counsel now seeks to discipline Shelhorse's law license.

The chief disciplinary counsel argues this Court should suspend Shelhorse's license with no leave to apply for reinstatement for six months. She contends Shelhorse has been practicing law in violation of the continuing legal education reporting mandate found in Rule 4-5.5(c) for several years, despite his repeated assurances that he would bring himself into compliance. She also asserts that Shelhorse violated Rule 4-8.1(b) when he failed to respond to four requests for information from disciplinary authorities.

Shelhorse agrees that this Court should suspend his license as recommended. He responds, however, that he had obtained sufficient continuing legal education credits by April 1, 2004, to be compliant through the 2004 reporting year.