Case Summary for January 13, 2015

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Case Summary for January 13, 2015

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, January 13, 2015
____________________________________________________________________________________________________

SC94224
Five Delta Alpha LLC v. Director of Revenue
Jackson County
Applicability of tax exemption to purchase of airplane
Listen to the oral argument:

SC94224.mp3
Five Alpha Delta was represented during arguments by Paul V. Herbers of Cooling & Herbers PC in Kansas City; the director was represented by Solicitor General James R. Layton of the attorney general's office in Jefferson City.

Five Alpha Delta LLC bought an airplane in March 2011 in Wichita, Kansas, immediately leasing it to JetSelect, which moved the airplane to Missouri, where it has been based since. JetSelect provides on-demand air transportation for hire to the general public under individual agreements. When a customer requests air transportation, JetSelect creates a price quote based on information provided by the customer and on a published hourly rate of $4,750 for the airplane. JetSelect oversees all maintenance for the airplane, which its pilots fly. As of the end of 2011, JetSelect had operated the airplane for more than 100 hours and 44,000 miles. In 2011, Five Alpha Delta paid nearly $1.4 million in Missouri use taxes under protest and then sought a refund of those taxes, claiming it qualified for a resale exemption because the airplane is leased to a common carrier. The director of revenue denied the refund, and the company sought review from the administrative hearing commission. In its May 2014 decision, the commission also denied the refund, determining that – although JetSelect is a “common carrier” under the tax laws – Five Alpha Delta did not qualify for tax exemption because its purchase of the airplane was not for “resale.” Five Alpha Delta seeks this Court’s review.

Five Alpha Delta argues the commission erred in ruling it is not entitled to a refund of the use tax paid. It contends the subsequent lease of the airplane to a common carrier is considered a sale and, therefore, the airplane is exempt from tax because it was purchased for resale. Five Alpha Delta asserts the commission erred in excluding from the record certain exhibits that it argues are relevant to demonstrate it qualifies for the common carrier exemption to Missouri use tax. The company contends these exhibits tend to prove a fact in issue or corroborate other relevant evidence that bears on the main issue.

The director responds that this Court need not and should not address the portion of the commission’s decision finding that Five Delta Alpha’s purchase of an airplane it then leased to JetSelect was a sale of an aircraft to a common carrier for storage or use in interstate commerce, entitling Five Alpha Delta to claim an exemption for such a sale. The director argues that, because the director dismissed his cross-appeal, whether the commission erred in refusing to admit the exhibits is moot. For purposes of this case, the director contends, if JetSelect is a “common carrier,” then Five Alpha Delta’s purchase of the airplane was “for resale.”

SC94224_Five_Delta_Alpha_brief.pdf

SC94224_Director_of_Revenue_brief.pdf

SC94224_Five_Delta_reply_brief.pdf

SC94374
Robert S. Eaton v. CMH Homes Inc. and Southern Energy Homes Inc. and Henry Concrete LLC
Lincoln County
Enforceability of arbitration agreement in contract to purchase manufactured home
Listen to the oral argument:

SC94374.mp3
CHM was represented during arguments by Christopher P. Leritz of Leritz, Plunkert & Bruning PC in St. Louisy; Eaton was represented by Michael J. Sudekum of Mandel & Mandel LLP in St. Louis.

Robert Eaton purchased a manufactured home in April 2009 from CMH Homes Inc. pursuant to a contract that included an arbitration clause governed by the federal arbitration act. In September 2012, Eaton sued CMH and two other companies alleging negligence, fraud in the inducement, negligence and/or intentional misrepresentation, strict liability, and breach of contract. In March 2013, CMH moved to dismiss the suit or stay the suit and compel arbitration. The circuit court overruled the motion to compel arbitration. CMH appeals.

CMH argues the circuit court erred in overruling its motion to compel arbitration. It contends Missouri law favors arbitration for resolving contract disputes because it is a speedy, efficient and less costly alternative to court litigation. It asserts the arbitration agreement in the contract is not unenforceable because the contract, when read as a whole, meets the requirement of mutual consideration (such that both sides gave up something in exchange for the bargain). CMH argues the arbitration clause is not unconscionable because it does not empower CMH to divest itself wholly of the obligation to arbitrate and, when viewed on a case-by-case basis, is not an agreement that no person in his senses and not under delusion would make. CMH contends any perceived lack of mutual consideration can be resolved by allowing Eaton to litigate counterclaims directly related to actions brought by CMH pursuant to the exceptions of the arbitration provision. It asserts the method for selecting an arbitrator is not unconscionable because it allows Eaton to participate in the selection process. CMH argues the federal arbitration act does not affect Eaton’s rights under Missouri law because the federal law merely establishes and regulates the duty to honor arbitration agreements. CMH contends that, even after Henry Concrete LLC – also a defendant to Eaton’s suit – files its answer to Eaton’s petition, that company cannot be forced to participate in arbitration because it did not sign the contract.

Eaton responds that the circuit court did not err in overruling CMH’s motion to compel arbitration. He argues the agreement is unenforceable because it does not meet the requirement that there be mutual consideration. He contends the arbitration clause is unenforceable because it is unconscionable because its terms are one-sided, non-negotiable, offensive to general notions of fairness, illusory (lacking sufficient consideration) and otherwise defective. Eaton asserts the lack of consideration and unconscionability do not allow for a judicial remedy because the choice over the method of dispute resolution would remain with CMH. He argues the method for selecting an arbitrator is part of the analysis for unconscionability because this provision is one of many empowering CMH with more rights than him. He contends it is unconscionable to require the federal arbitration act to apply because he did not negotiate its application, demonstrating the agreement constitutes a contract of adhesion (a contract in which one side has all the bargaining power). Eaton further asserts CMH’s motion to compel arbitration is premature because there are questions of agency between CMH and Henry Concrete.

SC94374_CMH_Homes_Brief.pdf

SC94374_Eaton_brief.pdf

SC94374_CMH_Homes_reply_brief.pdf

SC94324
State of Missouri v. Michael E. Amick
Oregon County
Challenge to arson, murder convictions; challenge to use of alternate juror
Listen to the oral argument:

SC94324.mp3
Amick was represented during arguments by Samuel E. Buffaloe of the public defender's office in Columbia; the state was represented by Gregory L. Barnes of the attorney general's office in Jefferson City.

The grandmother of Michael Amick’s wife was found dead in the remnants of her burned home in the Oregon County town of Myrtle. An autopsy revealed she died from six gunshot wounds to the head before the fire burned the house. A state fire marshal investigator was unable to determine how or where the fire had started, although he noted it was “quite a coincidence” the fire would occur at the same time someone had been shot inside the home. An eyewitness told authorities he had seen Amick’s truck at the residence before the fire. Amick denied it was his truck and said he had been at his mother’s home, running errands and having lunch in a cafe at the time. Law enforcement officers were unable to find Amick’s truck. Ultimately, the state charged Amick with second-degree arson and first-degree murder, and the case was tried before a jury. During closing arguments, the prosecutor accused Amick’s counsel and family of “creating a fraud in this court,” being “corrupt and deceitful,” committing “a crime,” “hindering prosecution,” engaging in “fraudulent behavior” and “misleading” the jury by putting the license plates of Amick’s truck onto another truck that was not his, taking photographs, and then showing the jury the photographs of the truck that was not Amick’s while telling them it was.

Before deliberations began, the trial court excused an alternate juror. After almost five hours of deliberation, one juror said he was not feeling well but could continue deliberating a little longer. Later, the court contacted the dismissed alternate juror, who said she had discussed the case “somewhat” – but not its “facts” –after being dismissed. When the court told the alternate juror to return, she said, “This is my worst nightmare.” She arrived back at the courthouse about 35 minutes later. Defense counsel moved for a mistrial, arguing the court could not substitute an alternate after the jury had been deliberating for more than five and a half hours. Alternatively, defense counsel moved that the jury be sent home until the juror who was ill was feeling better and could continue deliberations. The court overruled the motions, and when the ill juror said he could not focus, the court excused him, substituted the alternate juror and directed the jury to continue deliberations. About 10 minutes later, the jury returned its verdicts finding Amick guilty of second-degree arson and the lesser-included charge of second-degree murder and was sentenced to concurrent terms of seven years in prison and life imprisonment. The alternate juror told the court she remembered everything and knew how she felt when she came back. Defense counsel moved for a mistrial or new trial, which the court overruled. The court sentenced Amick to concurrent sentences of seven years in prison and life imprisonment. Amick appeals.

Amick argues the trial court erred in overruling his objections and requests for mistrial when the court substituted an alternate juror, who had left the courthouse, after the jury had been deliberating for hours. He contends this violated his federal and state constitutional rights to due process and a fair trial before an impartial and qualified jury and was contrary to state statute. He asserts he was entitled to have the same jury throughout deliberations. Amick argues he was prejudiced because the alternate juror had been discharged and discussed the case with others – including her relief to have been discharged – said it was her “worst nightmare” to have to rejoin the jury and said she knew how she felt when she came back. He argues he also was prejudiced because the court did not instruct the newly comprised jury to deliberate anew but instead instructed them to continue deliberations, resulting in a verdict about 10 minutes later. Amick argues the trial court plainly erred in not declaring a mistrial on its own motion after the prosecutor made the accusations against Amick’s counsel and family. Amick contends the prosecutor’s argument denied his federal and state constitutional rights to due process and a fair trial by improperly making unwarranted, unsupported personal attacks and referred to facts not in evidence, resulting in manifest injustice. Amick asserts the trial court plainly erred – abandoning its duty of neutrality and injecting itself into the proceeding – when it commented in the jury’s presence that the state’s only eyewitness had answered consistently each time in describing the truck he saw at the victim’s home and established that he could describe the vehicle. Amick argues this violated his state and federal right to due process because the court’s comments about the evidence were inherently prejudicial, adding substantive support to the state’s case and the state eyewitness’s credibility and ability to identify the truck, resulting in manifest injustice.

The state responds that Amick failed to preserve his claim that substituting the alternate juror for the ill juror violated a state statute, which is merely directory, and that the federal rule on which the statute is based does not require reversal absent prejudice. The state argues Amick affirmatively waived any constitutional objection to the replacement by objecting to the state’s proposal to instruct the jury to begin deliberations anew. The state contends that Amick failed to meet his burden to show prejudice and that he suffered no prejudice, let alone manifest injustice or a miscarriage of justice. The state asserts that 12 fully qualified jurors who sat through the entire trial were instructed by the court, deliberated together and unanimously rendered verdicts of guilty and that the court took proper procedural measures to ensure the alternate had not discussed the facts of the case before being recalled. The state argues that, because Amick previously failed to seek plain error review of his claim or allege manifest injustice or a miscarriage of justice, he is precluded from raising a new basis for his claim in this Court. The state contends the trial court was in the best position to exercise discretion about a juror’s fitness to continue deliberations and about whether to adopt the drastic remedy of a mistrial. The state asserts that the use of an alternate juror during deliberations is not a per se violation of Missouri law and does not violate either the state or federal constitution. The state responds that the trial court did not plainly err in not declaring a mistrial on its own motion when the prosecutor argued the defense was hiding Amick’s truck and trying to pass off photographs of a different truck as his own. The state argues there was evidence to support the prosecutor’s theory, and the defense apparently made a strategic choice not to highlight the argument or its alleged impropriety by objecting at the time. The state responds that the trial court did not plainly err and no manifest injustice or miscarriage of justice resulted in making statements regarding the eyewitness. As to one statement, the state argues the trial court merely explained – in sustaining a defense objection on one ground but not another – that the prosecutor was not rehabilitating the eyewitness because he had answered consistently each time. As to the other statement, the state contends the trial court merely explained to the prosecutor – after the defense asked that the prosecutor be admonished not to ask repetitive questions – that the eyewitness had established he can describe the vehicle as grounds for why the prosecutor should move to a different question.

SC94324_Amick_brief.pdf

SC94324_State_brief.pdf

SC94324_Amick_reply_brief.pdf

SC94449
In re: Joby J. Raines
Saline County
Attorney discipline
Listen to the oral argument:

SC94449.mp3
The chief disciplinary counsel, Alan D. Pratzel of Jefferson City, represented his office; Raines was represented by Robert G. Russell of Russell and Kempton in Sedalia..

While working in Springfield in November 2003, attorney Joby Raines was ticketed by the Springfield police department for driving while intoxicated. He later pleaded guilty to this charge and was sentenced to one year of supervised probation and ordered to pay a fine. In July 2004, while that charge was pending, police ticketed him for driving while intoxicated again, driving while his license was suspended and speeding. He pleaded guilty to driving while intoxicated, and the state dismissed the other two charges. He was ordered to pay a fine, to perform community service and to complete the SATOP program; was given a suspended sentence of 90 days in the county jail; and was placed on two years of unsupervised probation. He failed to report these convictions to the disciplinary authorities, and so he was not disciplined for them. He moved in 2007 to Marshall. In February 2012, the state charged Raines – as a persistent alcohol offender – with felony driving while intoxicated. In September 2012, he offered to plead guilty, and the court referred Raines to its treatment court program. He completed the program in the spring of 2014, pleaded guilty to misdemeanor driving while intoxicated, was given a suspended imposition of sentence and was placed on two years of supervised probation.

In August 2010, while Raines was working as a solo attorney in Marshall, a woman hired him to represent her in a divorce involving child custody and paid him an advance fee of $2,500. She discharged Raines in July 2012 and picked up her file. Because she did not believe Raines had done enough work to earn the full fee she had paid him, she asked for an accounting of his services. He would not discuss the matter with her and never gave her the accounting she requested. She took the matter to a fee dispute resolution center, which notified her in December 2012 that Raines had agreed to refund $1,800. She got a check for that amount from Raines about five months later. She also filed a complaint with the chief disciplinary counsel’s office, which asked Raines three times over four months to respond to the complaint. He received the requests but did not respond to any of them.

The chief disciplinary counsel’s office charged Raines with three counts. Raines admitted to two: violating Rule 4-8.4(b) by committing the criminal act of driving while intoxicated and violating Rule 4-8.1(c) by not responding to the disciplinary counsel’s requests for information. He denied a third for violating Rule 4-1.4(a) by not complying with a client’s request for an accounting for services he rendered her and Rule 4-1.16(d) by not refunding, after the client discharged him, a portion of an advance fee the client paid him. Following a May 2014 hearing, the disciplinary hearing panel concluded Raines violated the rules as charged and recommended his license be suspended with no leave to apply for reinstatement for at least six months. The chief disciplinary counsel asks this Court to discipline Raines’ law license.

The chief disciplinary counsel argues the Court should discipline Raines because he has violated rules of professional conduct. The disciplinary counsel argues Raines admitted he violated Rules 4-8.1(c) and 4-8.4(b). He contends Raines also violated Rules 4-1.4(a) and 4-1.16(d) by refusing to discuss with his client or account for an advance fee she had paid him and by delaying five months before paying the portion of the fee he had agreed to refund her. The chief disciplinary counsel asserts this Court should suspend Raines’ law license with no stay and with no leave to apply for reinstatement for at least six months. The disciplinary counsel argues Raines violated multiple rules of professional conduct, including one against committing a criminal act and another for which he previously was reprimanded. The disciplinary counsel contends Raines has pleaded guilty to three incidents of drunken driving and willfully failed, again, to respond to requests for information from disciplinary authorities. The disciplinary counsel asserts Raines also failed to act ethically upon his client’s termination of his representation.

Raines agrees his law license should be suspended without leave to apply for reinstatement for at least six months but responds that this Court should stay his suspension and place him on probation for three years. He argues a prior holding of this Court does not preclude a stayed suspension in his case. He contends that, although he has had two convictions for driving while intoxicated and one for driving with excessive blood alcohol content, he was not convicted of a felony. Raines asserts he is eligible for probation pursuant to Rule 5.225.

SC94449_Chief_disciplinary_counsel_brief.PDF

SC94449_Raines_brief.pdf