Case Summary for November 19, 2002

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Case Summary for November 19, 2002

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 THE BRIEF(S) FILED BY THE PARTY OR PARTIES. THESE ELECTRONIC BRIEFS HAVE BEEN CONVERTED TO PDF BY THE COURT'S STAFF TO ACCOMMODATE VARIOUS WORD PROCESSORS. (If you do not already have the Acrobat reader, you may obtain it free at the Adobe website.) THE ATTACHMENTS MAY NOT REFLECT ALL BRIEFS FILED WITH THE COURT, THE COMPLETE ELECTRONIC FILING, OR THE FORMAT OF THE ORGINAL FILING. APPENDICES AND OTHER ATTACHMENTS GENERALLY WILL NOT BE POSTED HERE. (To determine whether or which briefs have been filed in a particular case, visit Case.net.) POSTING OF THE BRIEFS DOES NOT REFLECT ANY OPINION OF THE COURT ABOUT THE APPROPRIATENESS OF THE FORMAT OF THE BRIEFS OR THE MERITS OF A CASE. THESE POSTINGS ARE NOT OFFICIAL COURT RECORDS. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION.

DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

Tuesday, November 19, 2002

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SC84638
Jennifer Dimmitt v. Progressive Casualty Insurance Company
Morgan County
Ownership interest under manufactured home law

In April 1997, Jennifer Dimmitt purchased a manufactured home from Ralph and Shirley Schwartz and took possession of it. The Schwartzes signed the back of the title and delivered it to Wayne Decker, the owner of the park where the home was located. Dimmitt financed the home through Decker. She would make monthly payments and Decker would hold the title until Dimmitt paid the entire loan for the home. Dimmitt apparently paid off the loan in April 1999 and received title at that time, although she did not have the department of revenue issue a new title in her name. In October 1997, Progressive Casualty Insurance Company issued Dimmitt an insurance policy, which she renewed in October 1998 for one year. She paid the yearly premium for policy coverage, which included sudden or accidental accumulations of ice or snow as well as living expense coverage if Dimmitt could not live in the mobile home due to a covered loss. In January 1999, an intense ice storm occurred, causing an accumulation of ice and snow that made the home's roof collapse. Progressive denied coverage under the policy, stating that Dimmitt's policy was void because she did not have an insurable interest in the home, and Dimmitt filed a petition for damages. Progressive filed a motion for summary judgment, and Dimmitt neither responded to the allegations in the motion nor offered any evidence in opposition to the motion. The court granted summary judgment to Progressive, and Dimmitt appeals.

Dimmitt argues the court erred in granting summary judgment in Progressive's favor. She argues there are genuine issues of material fact regarding whether she received a properly assigned title and, therefore, an insurable interest in the mobile home. She contends the title was assigned properly to her because it was endorsed by the sellers and was delivered to Decker, her lender. Dimmitt also asserts that her failure to deliver the title to the department of revenue did not void the sale under section 301.210.2, RSMo.

Progressive responds that summary judgment was proper because there were no genuine issues of material fact and because it was entitled to judgment as a matter of law. It argues Dimmitt never acquired an ownership or insurable interest in the manufactured home because she never received a properly assigned title to it or a certificate of ownership from the department of revenue as required by section 700.320 and chapter 301, RSMo. It contends Dimmitt, therefore, was not entitled to insurance coverage.

Dimmitt did not file a substitute brief in this Court, and her brief from the court below is not available in electronic form.

SC84541
State of Missouri v. Benjamin Thomas Honeycutt
Lafayette County
Failure to prosecute a criminal case

In December 1996, Benjamin Thomas Honeycutt allegedly committed the offenses of failure to drive on the right half of the roadway and driving while intoxicated. Charges were filed on both matters as separate cases. The court set the cases for trial in April 1998, but this entry does not appear in the record, and only the DWI case was called that day. The DWI case proceeded to a jury trial in October 1998, and Honeycutt was acquitted. When a new circuit judge took the bench in January 2001, he noticed that the driving on the right side of the roadway case still was pending. Honeycutt's attorney subsequently asked the court to dismiss the case and, in May 2001, the court dismissed the case for failure to prosecute. The state appeals.

The state argues the court erred in dismissing the charge for the state's alleged failure to prosecute. It contends section 545.780, RSMo, expressly provides that a court cannot dismiss a case based on the state's failure to prosecute unless the court also finds that the defendant has been denied his constitutional right to a speedy trial. The state asserts it filed a proper information within the statute of limitations when the prosecutor signed the uniform complaint and summons. The state argues that Honeycutt did not allege, the court did not find and there was no substantial evidence to support a finding that Honeycutt's speedy trial rights had been violated.

Honeycutt responds that the court exercised sound discretion in dismissing the case because the state failed to prosecute, without reasonable excuse, the driving while on the right side of the road charge along with the DWI charge. He argues the state did not prosecute the charge for more than three years and allowing prosecution at that point would have prejudiced him. He contends the statute of limitations had run because the state did not file a proper information within a year of the occurrence.

SC84650
Jerry & Kimberly Norman, Individually and as Husband and Wife, and Jerry Norman, as Plaintiff ad Litem for Kenneth Norman, a Deceased Minor v. Andy J. Wright, M.D.
Greene County
Reduction of jury award in wrongful death case

Kim and Jerry Norman were expecting the birth of their first child, Kenneth, in April 1995. The attending obstetrician was Dr. Andy Wright. In February 1995, Kim Norman went to the labor and delivery department of St. John's Hospital in Springfield, Missouri, reporting that she had been feeling abnormal movement of her baby. Dr. Wright was not available, but his partner, Dr. Joseph Johnson, maintained telephone contact with the nurses throughout the night. The next morning, when the nurses paged Dr. Wright, he came to the hospital. Several hours later, he ordered an emergency Caesarian section. Kenneth Norman was born less than 30 minutes later with the umbilical cord wrapped approximately five times around his neck. He suffered extensive brain damage and died five months later. The Normans filed a wrongful death lawsuit against several doctors, including Drs. Johnson and Wright, and the hospital. One doctor was dismissed from the suit, and the Normans in July 2000 settled their claims with the hospital and Dr. Johnson for $100,000. The settlement expressly reserved to the Normans the right to proceed on all their claims against Dr. Wright, who asserted his right to have a jury apportion fault at trial. The case went to trial in July 2001, and the jury returned its verdict in favor of the Normans and against Dr. Wright for a total of more than $308,850. A week later, Dr. Wright asked for the first time that the verdict be reduced by the $100,000 for which the Normans settled with the hospital and Dr. Johnson. In August 2001, the court reduced the verdict by $100,000 and entered judgment for the reduced amount. The Normans appeal.

The Normans argue the court erred in reducing the jury's verdict by $100,000 and that this error prejudiced them. They contend that for Dr. Wright to get the benefit, under section 537.060, RSMo, or section 538.230, RSMo, of an offset or credit from money paid by other parties in a previous settlement, he was required to plead this request as an affirmative defense. They assert he waived his rights to benefit from an offset or credit when he withdrew his request for apportionment or allocation of fault from his answer before trial began and when he allowed the trial to proceed without asserting any affirmative request for any offset or credit.

Dr. Wright responds that section 537.060 required the court to reduce the jury verdict by the amount the Normans received in their partial settlement. He argues the statute required such a reduction because the settlement reduced the number of defendants to one and because he and the Normans waived their rights to have the jury apportion fault in their verdict. He contends that once they waived their rights to apportionment, section 538.230 no longer applied. Dr. Wright also asserts the release the Normans executed when they settled with the hospital and Dr. Johnson indicated their intention that section 537.060 would govern the settlement.

SC84696
In re: Russell Anthony Wilis, III
St. Louis County
Attorney discipline

Creve Coeur, Missouri, attorney Russell Anthony Willis III served as a special representative of the office of chief disciplinary counsel from November 1983 to early 2000. He has a master's of law degree in taxation and maintains a private practice in the areas of probate, trust administration and estate planning. In March 1997, Frank Ikemeier turned to Willis for help enforcing payments from a trust of which his mother, his brothers and he were beneficiaries. Willis drafted and filed pleadings to terminate the trust and establish a new trust in Ikemeier's mother's name, naming himself as trustee. At no time did he put in writing the possible conflicts of interest that could arise from functioning as trustee, attorney for the trust, attorney for himself as trustee, and attorney for the mother in terminating the previous trust. When he learned that the previous trustee had sold stock and the trust had incurred a capital gains tax liability, Willis decided to offset the tax liability by reporting "accrued" attorney's fees in 1997 in anticipation of litigation that had not yet occurred. Ikemeier agreed to the strategy, but there never was any discussion of where the legal fees would go or how much Willis would advance himself out of the trust. Willis also never entered into a verbal or written contract as to the amount he would be compensated for work he did for the trust. From late 1997 through mid-1998, Willis paid himself out of the trust's two accounts, apparently to help pay sizeable tax debt and to help pay household expenses. In August 1998, he drafted a promissory note documenting that he, as principal of a Missouri venture, owed money to the trust and would repay within five years all amounts advanced to him, not to exceed $20,000 at 9-percent interest, compounded annually. Ikemeier's mother died in March 1999, and Willis told Ikemeier and his brothers how much money was left in the trust. He did not disclose the promissory note until seven months later, when he gave Ikemeier a copy of the note. He later told the beneficiaries that he had moved the money out of the trust to offset the projected capital gains tax and that he was completely unable to repay the principal at that time. Ikemeier and his brothers retained different attorneys to complete the litigation against the previous trustee and to settle the financial matters with Willis. In January 2000, Ikemeier submitted a written complaint to the chief disciplinary counsel's office about Willis, who borrowed money in April 2001 to repay the nearly $131,150 he owed to the beneficiaries. Willis did not provide the trust beneficiaries with regular statements or accountings until February 2000.

The chief disciplinary counsel now seeks to discipline Willis for violating the rules of professional conduct. She argues Willis failed to safeguard client funds in violation of Rule 4-1.15 by using trust monies for his own personal purposes. She contends he materially limited his representation of the trust clients by his own interests after he loaned himself client monies without client advice and consent in violation of Rules 4-1.7 and 4-1.8. She asserts his conduct involved deceit and misrepresentation in violation of Rule 4-8.4(c)(d) and was prejudicial to the administration of justice. The chief disciplinary counsel argues Willis should be disbarred for knowingly violating his duties to his clients and the trust by engaging in self-dealing, being deceitful and putting client funds at risk.

Willis responds that this Court may not have jurisdiction over this case. He argues the advisory committee chair failed to assign the case to a disciplinary hearing panel in a timely manner under Rule 5.14 and failed to set a hearing date in a timely manner under Rule 5.15, although he does not claim he was prejudiced by these delays. Willis contends the evidence does not support a finding that he violated Rule 4-1.15(a) because his withdrawal from trust funds of amounts in excess of his fees was in the nature of a loan, not an advance against unearned fees. He asserts the evidence does not support a finding that he violated Rule 4-1.7(b) because that rule does not apply to a situation in which a lawyer's own interests conflict with those of an existing client. Willis responds that the evidence does not support a finding that he violated Rule 4-8.4(c) because, by executing a promissory note to the trust, he was acknowledging his obligation to the trust and was not engaging in dishonesty, fraud, deceit or misrepresentation. He further argues that disbarment is not appropriate because he made a complete disclosure to Ikemeier and his brothers, worked with their lawyers to account for the funds and fully repaid his debt to them.