The materials below are provided solely for the interest and convenience of the reader, are not official Court records, and should not be quoted or cited as such. Once cases are docketed, the briefs filed by the parties typically are posted within a day or so. Summaries of the cases are prepared by the Court’s communications counsel and typically are posted the week before arguments. Audio files and information about attorneys who argued typically are posted within a day or so after arguments. Further information about the cases may be available through Case.net.
DOCKET SUMMARIES
SUPREME COURT OF MISSOURI
9:30 a.m. Wednesday, November 15, 2017
SC96513
Andrew Dickemann v. Costco Wholesale Corporation
St. Louis County
Whether labor and industrial relations commission must approve settlement
Listen to the oral argument: SC96513 MP3 file
Dickemann was represented during arguments by James G. Krispin, an attorney in St. Louis; Costco elected not to argue.
Andrew Dickemann was injured in July 2010 while working for Costco Wholesale Corporation in St. Louis County. An administrative law judge awarded him nearly $800 in weekly permanent disability benefits beginning in March 2013. The award also provided for a 25-percent lien against his benefit payments in favor of Dickemann’s attorney for necessary legal services rendered to Dickemann. The award became final in April 2014. In November 2016, Dickemann and Costco voluntarily entered into a stipulation agreement to settle Dickemann’s lifetime disability benefits for a one-time lump sum payment of $400,000 from Costco to Dickemann. They agreed the net payment would be $300,000 after deducting the percentage for attorney fees. The labor and industrial relations commission denied approval of the settlement. Dickemann appeals; Costco adopts his brief and joins in his request for relief.
This appeal presents one question for this Court – whether the law requires the commission to approve the parties’ voluntary settlement agreement.
Listen to the oral argument: SC96513 MP3 file
Dickemann was represented during arguments by James G. Krispin, an attorney in St. Louis; Costco elected not to argue.
Andrew Dickemann was injured in July 2010 while working for Costco Wholesale Corporation in St. Louis County. An administrative law judge awarded him nearly $800 in weekly permanent disability benefits beginning in March 2013. The award also provided for a 25-percent lien against his benefit payments in favor of Dickemann’s attorney for necessary legal services rendered to Dickemann. The award became final in April 2014. In November 2016, Dickemann and Costco voluntarily entered into a stipulation agreement to settle Dickemann’s lifetime disability benefits for a one-time lump sum payment of $400,000 from Costco to Dickemann. They agreed the net payment would be $300,000 after deducting the percentage for attorney fees. The labor and industrial relations commission denied approval of the settlement. Dickemann appeals; Costco adopts his brief and joins in his request for relief.
This appeal presents one question for this Court – whether the law requires the commission to approve the parties’ voluntary settlement agreement.
SC96545
Jason Scott Bowers v. Jessica Layne Bowers
St. Louis city
Challenge to award of custody to stepfather
Listen to the oral argument: SC96545 MP3 file
The mother was represented during arguments by Michael A. Gross of the Michael Gross Law Office in St. Louis; the father was represented by Lawrence G. Gillespie of Gillespie, Hetlage & Coughlin LLC in Clayton.
During a proceeding to dissolve a marriage, a dispute arose as to the paternity of a young girl born approximately two years before the couple married. Subsequent DNA testing showed the girl’s father was another man, who was granted leave to intervene in the dissolution proceeding. During the proceeding, the mother and stepfather shared physical custody of the girl. All three adults sought custody. The circuit court found it had authority to determine the girl’s custody because both biological parents had asked it to do so. It also found it should treat the stepfather as a third party in the proceeding. The circuit court found joint custody would not be appropriate because the parties could not co-parent. It found both the mother and biological father were unfit to be the girl’s custodian. It further found the mother was unlikely to allow the daughter meaningful contact with the stepfather, who was the only father the girl had known. The circuit court granted legal and physical custody of the girl to the stepfather. The mother appeals.
This appeal presents several questions for this Court. One is whether the circuit court should have granted custody to the stepfather. Related issues include whether the circuit court’s finding that the mother was unfit was supported by substantial evidence or was against the weight of the evidence; whether the circuit court found the child’s welfare or best interests necessitated such a custody award; and whether the award of custody to a third party such as the stepfather was permitted under the relevant statute. Another question involves whether the circuit court should have designated the stepfather a “third party” in the dissolution action – even though he was the husband in the action to dissolve the marriage – so the circuit court could award him third-party custody of the child. Other questions include whether the mother’s notice of appeal was timely so as to allow for appellate review of the judgment.
Listen to the oral argument: SC96545 MP3 file
The mother was represented during arguments by Michael A. Gross of the Michael Gross Law Office in St. Louis; the father was represented by Lawrence G. Gillespie of Gillespie, Hetlage & Coughlin LLC in Clayton.
During a proceeding to dissolve a marriage, a dispute arose as to the paternity of a young girl born approximately two years before the couple married. Subsequent DNA testing showed the girl’s father was another man, who was granted leave to intervene in the dissolution proceeding. During the proceeding, the mother and stepfather shared physical custody of the girl. All three adults sought custody. The circuit court found it had authority to determine the girl’s custody because both biological parents had asked it to do so. It also found it should treat the stepfather as a third party in the proceeding. The circuit court found joint custody would not be appropriate because the parties could not co-parent. It found both the mother and biological father were unfit to be the girl’s custodian. It further found the mother was unlikely to allow the daughter meaningful contact with the stepfather, who was the only father the girl had known. The circuit court granted legal and physical custody of the girl to the stepfather. The mother appeals.
This appeal presents several questions for this Court. One is whether the circuit court should have granted custody to the stepfather. Related issues include whether the circuit court’s finding that the mother was unfit was supported by substantial evidence or was against the weight of the evidence; whether the circuit court found the child’s welfare or best interests necessitated such a custody award; and whether the award of custody to a third party such as the stepfather was permitted under the relevant statute. Another question involves whether the circuit court should have designated the stepfather a “third party” in the dissolution action – even though he was the husband in the action to dissolve the marriage – so the circuit court could award him third-party custody of the child. Other questions include whether the mother’s notice of appeal was timely so as to allow for appellate review of the judgment.
SC96545_Mother_redacted_brief_filed_in_ED
SC96545_Stepfather_brief
SC96499
Jeff Reed v. The Reilly Company LLC
Jackson County
Challenge to enforcement of a forum selection clause and dismissal of an employee’s lawsuit against his former employer
Listen to the oral argument: SC96499 MP3 file
Reed was represented during arguments by William C. Kenney of the Bill Kenney Law Firm LLC in Kansas City; the company was represented by Lee M. Smithyman of Smithyman & Zakoura Chartered in Overland Park, Kansas.
The Reilly Company LLC – based in Kansas but with a registered agent in Missouri – employs agents to sell insurance. In March 2010, it hired Jeff Reed to work in its Johnson County, Kansas, office. The parties entered into three agreements – a broker agreement, an exhibit to that agreement, and a confidentiality and proprietary agreement. The company terminated Reed, without notice, in October 2015. Reed retained counsel and, in June 2016, sued the company). In part, Reed asserted the “employment agreement” is unenforceable and, therefore, the company cannot enforce an outbound forum selection clause in the agreement. He brought claims seeking a declaration that the consideration promised to him was illusory and an injunction to prevent the company from attempting to enforce any agreement purportedly governing his conduct during what he alleges was at-will employment with the company. He also asserted claims for fraudulent or negligent misrepresentation and concealment as well as for violations of the state’s merchandising practices act (chapter 407, RSMo). The circuit court dismissed Reed’s petition, finding the parties had a written agreement with a forum selection clause establishing Johnson County, Kansas, as the sole venue over disputes involving the agreement. Reed appeals.
This appeal raises several questions for the Court. One is whether the circuit court should have treated the company’s motion to dismiss as a motion for summary judgment and whether Reed properly preserved this issue for appeal. Another question is whether the circuit court should have dismissed Reed’s merchandising practices act claim. Related issues include whether the company is an insurance company regulated in Missouri and, if so, whether it is exempt from a private citizen’s claims under the act. An additional question is whether the circuit court should have enforced the forum selection clause in the insurance broker agreement between the company and Reed. Related issues include whether this agreement was illusory or unenforceable or whether the parties’ relationship instead was governed merely by an at-will employment relationship; whether the forum selection clause contained precise language, was supported by sufficient consideration, and was neutral and reciprocal; and whether the company materially breached the agreement and, if so, whether it can seek to enforce a term of the agreement.
Several organizations filed briefs as friends of the Court. The National Consumer Law Center focuses its analysis on the history and plain language of the merchandising practices act in arguing certain court decisions incorrectly concluded the act’s exemption for regulated entities such as insurance companies effectively precludes any such entity from being sued for violations of consumer protection laws. The American Financial Services Association and Missouri Auto Dealers Association argue the plain language of the act creates a bright line exempting regulated industries from the definition of “unlawful practices” and precludes any private right of action against such entities. The Missouri Bankers Association, Missouri Insurance Coalition, Property Casualty Insurers Association of America and The American Insurance Association argue this Court should not eliminate the exemption for regulated entities to permit private claims of action.
SC96499_Reed_brief
SC96545_Stepfather_brief
SC96499
Jeff Reed v. The Reilly Company LLC
Jackson County
Challenge to enforcement of a forum selection clause and dismissal of an employee’s lawsuit against his former employer
Listen to the oral argument: SC96499 MP3 file
Reed was represented during arguments by William C. Kenney of the Bill Kenney Law Firm LLC in Kansas City; the company was represented by Lee M. Smithyman of Smithyman & Zakoura Chartered in Overland Park, Kansas.
The Reilly Company LLC – based in Kansas but with a registered agent in Missouri – employs agents to sell insurance. In March 2010, it hired Jeff Reed to work in its Johnson County, Kansas, office. The parties entered into three agreements – a broker agreement, an exhibit to that agreement, and a confidentiality and proprietary agreement. The company terminated Reed, without notice, in October 2015. Reed retained counsel and, in June 2016, sued the company). In part, Reed asserted the “employment agreement” is unenforceable and, therefore, the company cannot enforce an outbound forum selection clause in the agreement. He brought claims seeking a declaration that the consideration promised to him was illusory and an injunction to prevent the company from attempting to enforce any agreement purportedly governing his conduct during what he alleges was at-will employment with the company. He also asserted claims for fraudulent or negligent misrepresentation and concealment as well as for violations of the state’s merchandising practices act (chapter 407, RSMo). The circuit court dismissed Reed’s petition, finding the parties had a written agreement with a forum selection clause establishing Johnson County, Kansas, as the sole venue over disputes involving the agreement. Reed appeals.
This appeal raises several questions for the Court. One is whether the circuit court should have treated the company’s motion to dismiss as a motion for summary judgment and whether Reed properly preserved this issue for appeal. Another question is whether the circuit court should have dismissed Reed’s merchandising practices act claim. Related issues include whether the company is an insurance company regulated in Missouri and, if so, whether it is exempt from a private citizen’s claims under the act. An additional question is whether the circuit court should have enforced the forum selection clause in the insurance broker agreement between the company and Reed. Related issues include whether this agreement was illusory or unenforceable or whether the parties’ relationship instead was governed merely by an at-will employment relationship; whether the forum selection clause contained precise language, was supported by sufficient consideration, and was neutral and reciprocal; and whether the company materially breached the agreement and, if so, whether it can seek to enforce a term of the agreement.
Several organizations filed briefs as friends of the Court. The National Consumer Law Center focuses its analysis on the history and plain language of the merchandising practices act in arguing certain court decisions incorrectly concluded the act’s exemption for regulated entities such as insurance companies effectively precludes any such entity from being sued for violations of consumer protection laws. The American Financial Services Association and Missouri Auto Dealers Association argue the plain language of the act creates a bright line exempting regulated industries from the definition of “unlawful practices” and precludes any private right of action against such entities. The Missouri Bankers Association, Missouri Insurance Coalition, Property Casualty Insurers Association of America and The American Insurance Association argue this Court should not eliminate the exemption for regulated entities to permit private claims of action.
SC96499_Reed_brief
SC96499_American_Financial_Services_Ass'n_and_MO_Auto_Dealers_Ass'n_amici_brief
SC96499_business_associations_and_coalition_amici_brief
SC96499_business_associations_and_coalition_amici_brief
SC96484
In re: Lydia Marie Carson
Jackson County
Attorney discipline
In re: Lydia Marie Carson
Jackson County
Attorney discipline
Listen to the oral argument: SC96484 MP3 file
The chief disciplinary counsel’s office was represented during arguments by Kevin J. Odrowski, an attorney in Kansas City; Carson was represented by Daniel F. Church of Morrow Willnauer Church LLC in Kansas City.
The chief disciplinary counsel’s office was represented during arguments by Kevin J. Odrowski, an attorney in Kansas City; Carson was represented by Daniel F. Church of Morrow Willnauer Church LLC in Kansas City.
Kansas City attorney Lydia Carson previously was reprimanded once and admonished four times. The chief disciplinary counsel instituted these disciplinary proceedings against Carson in December 2015 for issues arising in three related bankruptcy proceedings involving interrelated companies engaged in the motel and lodging industry. She was counsel of record in the two bankruptcy cases filed in Missouri on behalf of the same company – one in June 2012 and, after it voluntarily dismissed that case, another filed in January 2013 – and was co-counsel for a third case in Louisiana. In February 2013 – the same month her mother died – Carson was reprimanded in Missouri, but she did not report this disciplinary action to the federal court clerk for three years. In an affidavit accompanying her March 2013 motion to appear in the Louisiana case, she stated she had not been the subject of any disciplinary proceedings. Also in March 2013, she failed to respond to a court order to disclose compensation from and connections with the debtor, its affiliates and other interested parties. In response to a subsequent order from the court, Carson failed to disclose certain payments she had received from (or on behalf of) the debtor company in the prior bankruptcy. In all, Carson was ordered to disgorge (return to the bankruptcy estate) more than $26,000 in the three bankruptcy cases. Further, Carson posted written advertisements on Craigslist for legal representation in traffic, divorce and bankruptcy cases, but the advertisements did not contain the required disclosure that “the choice of a lawyer is an important decision and should not be based solely upon advertising.” Following a fall 2016 hearing, a regional disciplinary hearing panel in April 2017 issued its decision, finding Carson violated Rules 4-3.3 and 4-8.4 by knowingly making false statements to two bankruptcy courts in written documents and knowingly disobeying an obligation to report public discipline to the federal court clerk; and Rule 4-7.2 by omitting certain disclosures in her advertising. The panel recommended Carson’s law license be suspended indefinitely with no leave to apply for reinstatement for at least three years. Carson rejected the recommendation, arguing she should be subject to no more than a stayed suspension with probation. The chief disciplinary counsel asks this Court to suspend Carson’s law license or disbar her.
This case presents two questions for this Court – whether Carson violated the rules of professional responsibility and, if so, what discipline, if any, is appropriate.
SC96484_Chief_Disciplinary_Counsel_brief
SC96484_Carson_brief
SC96571
In re: Dale Edward Gerecke
Cape Girardeau County
Attorney discipline
Listen to the oral argument: SC96571 MP3 file
Chief Disciplinary Counsel Alan D. Pratzel represented his office in Jefferson City during arguments; Gerecke was represented by Diane C. Howard of The Limbaugh Firm in Cape Girardeau.
As a result of federal tax liens filed against him and other financial difficulties he was experiencing, Cape Girardeau attorney Dale Edward Gerecke relinquished his partnership in a local law firm to become a salaried employee of the firm. Although his monthly income stabilized, the amount was reduced. In December 2015, he left the firm for a job as a company’s in-house counsel. A month later, his former firm contacted him because it could not account for a $1,500 payment made by one of the firm’s clients. In a meeting with members of the firm, Gerecke admitted he had taken the money and, shortly thereafter, repaid the funds. In a subsequent meeting with members of the firm, Gerecke repaid an additional $3,000 he admitted taking from fees paid by other clients. In the disciplinary proceedings subsequently instituted by the chief disciplinary counsel, an additional $400 in client payments were identified as missing, and Gerecke repaid these funds as well. During an April 2017 hearing, Gerecke admitted all factual allegations and rule violations. The regional disciplinary hearing panel found Gerecke violated Rule 4-1.15 regarding the client trust account and Rule 4-8.4 regarding misconduct. The panel recommended that Gerecke’s law license be suspended indefinitely with no leave to apply for reinstatement for three years, that the suspension be stayed and that he be placed on probation for three years with certain conditions. The chief disciplinary counsel rejected the recommendation and asks this Court to suspend Gerecke’s law license with no leave to apply for reinstatement for at least six months. Gerecke asks the Court to stay any suspension and place him on probation with conditions.
This case presents two questions for this Court – whether Gerecke violated the rules of professional responsibility and, if so, what discipline, if any, is appropriate.
SC96571_Chief_Disciplinary_Counsel_brief
SC96571_Gerecke_brief