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 a.m. Wednesday, December 6, 2017
SC96371
Marilyn Hink v. Loring Helfrich, M.D., Ly Phan, M.D., Missouri Delta Physicians Services and Missouri Delta Medical Center
Scott County
Constitutional validity of and ability to comply with health care affidavit requirement
Listen to the oral argument: SC96371 MP3 file
Hink was represented during arguments by Doug Ponder of Ponder Zimmerman LLC in St. Louis; the medical provider was represented by Ryan Gavin of Kamykowski, Gavin & Smith PC in St. Louis.
Following complications from a May 2013 gall bladder surgery, Marilyn Hink was hospitalized at Missouri Delta Medical Center. Two days after she was discharged, she went to the emergency room and subsequently was transferred to a different hospital, where she underwent an additional surgical procedure. In September 2016, Hink filed a medical malpractice lawsuit against the original surgeon. Section 538.225, RSMo, requires a plaintiff in a medical malpractice case to file an affidavit stating the plaintiff has obtained a written opinion from a legally qualified expert in the same profession and specialty as the defendant stating the defendant violated the standard of care, thereby causing the plaintiff’s damages. Hink sought an extension to file such an affidavit but never did so. In her petition, however, Hink alleged section 538.225 violates the state constitution’s right to open courts, right to trial by jury and separation of powers. The circuit court sustained the surgeon’s motion to dismiss the lawsuit for failure to file the required affidavit. Hink appeals.
This appeal presents one primary question for the Court – whether section 538.225 violates the state constitution. A related issue involves whether there are certain circumstances in which it would be impossible for a plaintiff to comply with the statute’s requirements and, if so, whether Hink established an inability to comply with the statutory requirements.
Marilyn Hink v. Loring Helfrich, M.D., Ly Phan, M.D., Missouri Delta Physicians Services and Missouri Delta Medical Center
Scott County
Constitutional validity of and ability to comply with health care affidavit requirement
Listen to the oral argument: SC96371 MP3 file
Hink was represented during arguments by Doug Ponder of Ponder Zimmerman LLC in St. Louis; the medical provider was represented by Ryan Gavin of Kamykowski, Gavin & Smith PC in St. Louis.
Following complications from a May 2013 gall bladder surgery, Marilyn Hink was hospitalized at Missouri Delta Medical Center. Two days after she was discharged, she went to the emergency room and subsequently was transferred to a different hospital, where she underwent an additional surgical procedure. In September 2016, Hink filed a medical malpractice lawsuit against the original surgeon. Section 538.225, RSMo, requires a plaintiff in a medical malpractice case to file an affidavit stating the plaintiff has obtained a written opinion from a legally qualified expert in the same profession and specialty as the defendant stating the defendant violated the standard of care, thereby causing the plaintiff’s damages. Hink sought an extension to file such an affidavit but never did so. In her petition, however, Hink alleged section 538.225 violates the state constitution’s right to open courts, right to trial by jury and separation of powers. The circuit court sustained the surgeon’s motion to dismiss the lawsuit for failure to file the required affidavit. Hink appeals.
This appeal presents one primary question for the Court – whether section 538.225 violates the state constitution. A related issue involves whether there are certain circumstances in which it would be impossible for a plaintiff to comply with the statute’s requirements and, if so, whether Hink established an inability to comply with the statutory requirements.
SC96371_MODL_amicus_brief
SC96514
Gary S. Heifetz, Jeffrey S. Gershman, Steven B. Spewak, Jean Maylack, Fallon Maylack, Steven M. Stone, Individually and as Personal Representative of the Estate of Sidney L. Stone, and Sidney M. Stone v. Apex Clayton Inc.
St. Louis County
Challenge to damages and attorney fees awarded for breaches of contract and fiduciary duty in lawsuit over limited partnership
Listen to the oral argument: SC96514 MP3 file
Apex was represented during arguments by Heidi Vollet of Cook, Vetter, Doerhoff & Landwehr PC in Jefferson City; the limited partners were represented by Joe Jacobson of Jacobson Press & Fields PC in Clayton.
General partner Apex Clayton Inc. entered into a limited partnership agreement with certain individuals in an organization with ownership interests in certain commercial buildings in Clayton. In September 2005, one of the limited partners sent a letter telling Apex he wished to exercise forced sale rights under a clause of the partnership agreement; other limited partners later requested a similar buyout. Apex declined, telling the limited partners such a buyout was inconsistent with the partnership agreement. Following earlier litigation, several limited partners sued Apex in December 2010, alleging breach of contract and breach of fiduciary duty. Specifically, they alleged Apex failed to make certain cash distributions and failed to comply with a forced sale provision of the partnership agreement. Following a June 2015 trial, the jury found in favor of the limited partners on their breach of contract claim, awarding them a total of approximately $2.8 million. The jury also found in favor of the limited partners on their fiduciary duty claim, awarding them $1,000 each in actual damages plus a total of $2.8 million in punitive damages. The circuit court entered judgment accordingly. The limited partners subsequently moved for a contract-based award of attorney fees and costs, and the circuit court awarded them approximately $313,000 in fees and costs. Apex appeals.
This appeal presents several questions for the Court. A preliminary question involves whether Apex filed its appeal on time and which circuit court judgment constituted the final judgment triggering the time for filing an appeal. Another question is whether the limited partners demonstrated Apex owed them a fiduciary duty to make distributions separate and independent of contractual obligations. An additional question is whether the limited partners proved they sustained pecuniary damages stemming from a breach of a fiduciary duty separate and apart from any damages sustained from Apex’s alleged failure to make annual cash distributions under the partnership agreement. A further question involves whether the limited partners recovered actual damages sufficient to sustain their award of punitive damages as well.
Listen to the oral argument: SC96514 MP3 file
Apex was represented during arguments by Heidi Vollet of Cook, Vetter, Doerhoff & Landwehr PC in Jefferson City; the limited partners were represented by Joe Jacobson of Jacobson Press & Fields PC in Clayton.
General partner Apex Clayton Inc. entered into a limited partnership agreement with certain individuals in an organization with ownership interests in certain commercial buildings in Clayton. In September 2005, one of the limited partners sent a letter telling Apex he wished to exercise forced sale rights under a clause of the partnership agreement; other limited partners later requested a similar buyout. Apex declined, telling the limited partners such a buyout was inconsistent with the partnership agreement. Following earlier litigation, several limited partners sued Apex in December 2010, alleging breach of contract and breach of fiduciary duty. Specifically, they alleged Apex failed to make certain cash distributions and failed to comply with a forced sale provision of the partnership agreement. Following a June 2015 trial, the jury found in favor of the limited partners on their breach of contract claim, awarding them a total of approximately $2.8 million. The jury also found in favor of the limited partners on their fiduciary duty claim, awarding them $1,000 each in actual damages plus a total of $2.8 million in punitive damages. The circuit court entered judgment accordingly. The limited partners subsequently moved for a contract-based award of attorney fees and costs, and the circuit court awarded them approximately $313,000 in fees and costs. Apex appeals.
This appeal presents several questions for the Court. A preliminary question involves whether Apex filed its appeal on time and which circuit court judgment constituted the final judgment triggering the time for filing an appeal. Another question is whether the limited partners demonstrated Apex owed them a fiduciary duty to make distributions separate and independent of contractual obligations. An additional question is whether the limited partners proved they sustained pecuniary damages stemming from a breach of a fiduciary duty separate and apart from any damages sustained from Apex’s alleged failure to make annual cash distributions under the partnership agreement. A further question involves whether the limited partners recovered actual damages sufficient to sustain their award of punitive damages as well.
SC96514_Apex_brief
SC96514_Limited_Partners_brief
SC96514_Apex_reply_brief
SC96650
State of Missouri v. Thomas Oates
St. Louis County
Availability of self-defense in felony murder case
Listen to the oral argument: SC96650 MP3 file
Oates was represented during arguments by Craig Johnston of the public defender’s office in Columbia; the state was represented by Greg Barnes of the attorney general’s office in Jefferson City.
Police arrested Thomas Oates for the shooting deaths of two individuals in a vehicle outside a gas station. In an interview with a detective, Oates said he was attempting to buy marijuana from the shooting victims. The state charged Oates with two counts each of second-degree murder and armed criminal action. It later filed notice that it might submit felony murder instructions based on the deaths being caused as the result of Oates attempting to perpetrate felony distribution of a controlled substance. At trial, Oates claimed he shot the victims in self-defense. The circuit court gave the jury instructions for second-degree murder, the lesser-included offenses of voluntary and involuntary manslaughter, as well as self-defense instructions related to second-degree murder. It also instructed the jury regarding second-degree felony murder but refused to submit to the jury the self-defense instructions Oates proffered relating to second-degree felony murder. Oates objected, arguing the victims attempted to rob him, allowing him to defend himself, but the circuit court found self-defense is not available for felony murder. Ultimately, the jury found Oates guilty of two counts of second-degree felony murder and two counts of armed criminal action, and the circuit court sentenced him to a total of 15 years in prison. Oates appeals.
This appeal presents one primary question for this Court – whether the circuit court should have given the jury self-defense instructions related to second-degree felony murder. Related issues involve whether, under section 563.031.1(3), RSMo, a person can use force – including deadly force – to defend himself unless he was attempting to commit, was committing or was escaping after committing a forcible felony; whether, under section 563.074.1, RSMo, such force is an absolute defense to criminal prosecution; or whether self-defense only is available for felony murder if it is an available defense to the underlying felony. Another related issue involves whether, after indicting him for second-degree murder, the state properly notified Oates it would proceed with felony murder as well as conventional second-degree murder and whether the circuit court should have instructed the jury regarding second-degree felony murder.
SC96650_Oates_reply_briefListen to the oral argument: SC96650 MP3 file
Oates was represented during arguments by Craig Johnston of the public defender’s office in Columbia; the state was represented by Greg Barnes of the attorney general’s office in Jefferson City.
Police arrested Thomas Oates for the shooting deaths of two individuals in a vehicle outside a gas station. In an interview with a detective, Oates said he was attempting to buy marijuana from the shooting victims. The state charged Oates with two counts each of second-degree murder and armed criminal action. It later filed notice that it might submit felony murder instructions based on the deaths being caused as the result of Oates attempting to perpetrate felony distribution of a controlled substance. At trial, Oates claimed he shot the victims in self-defense. The circuit court gave the jury instructions for second-degree murder, the lesser-included offenses of voluntary and involuntary manslaughter, as well as self-defense instructions related to second-degree murder. It also instructed the jury regarding second-degree felony murder but refused to submit to the jury the self-defense instructions Oates proffered relating to second-degree felony murder. Oates objected, arguing the victims attempted to rob him, allowing him to defend himself, but the circuit court found self-defense is not available for felony murder. Ultimately, the jury found Oates guilty of two counts of second-degree felony murder and two counts of armed criminal action, and the circuit court sentenced him to a total of 15 years in prison. Oates appeals.
This appeal presents one primary question for this Court – whether the circuit court should have given the jury self-defense instructions related to second-degree felony murder. Related issues involve whether, under section 563.031.1(3), RSMo, a person can use force – including deadly force – to defend himself unless he was attempting to commit, was committing or was escaping after committing a forcible felony; whether, under section 563.074.1, RSMo, such force is an absolute defense to criminal prosecution; or whether self-defense only is available for felony murder if it is an available defense to the underlying felony. Another related issue involves whether, after indicting him for second-degree murder, the state properly notified Oates it would proceed with felony murder as well as conventional second-degree murder and whether the circuit court should have instructed the jury regarding second-degree felony murder.
SC96649
In the Estate of: Joseph B. Mickels. Ruth Mickels v. Raman Danrad
Marion County
Whether personal representative can be appointed years after a person’s death to file a medical negligence survivorship lawsuit
Listen to the oral argument: SC96649 MP3 file
Mickels was represented during arguments by Tom Neill of Gray, Ritter & Graham PC in St. Louis; the medical provider was represented by John Morthland of Wasinger Parham LC in Hannibal.
Ruth Mickels’ husband died in June 2009. Three years later, she and his children filed a wrongful death action, alleging a medical provider failed to diagnose a terminal brain tumor after the husband first sought medical attention. The circuit court dismissed their petition. On appeal, this Court vacated the judgment and remanded (sent back) the case, finding the husband’s personal representative may have the opportunity to sue for negligence for depriving the husband of the opportunity to delay his death. Mickels subsequently opened a probate case and applied to be appointed personal representative of her husband’s estate. The circuit court denied her application, finding it was untimely and barred by section 473.020, RSMo, which requires a personal representative to be appointed within a year of a person’s death. Mickels appeals.
This appeal presents one primary question for this Court – whether this Court’s prior decision in the wrongful death case establishes a new cause of action and, if so, whether equity warrants Mickels’ appointment as personal representative of her husband’s estate. Related issues involve whether, even if Mickels were appointed personal representative, the applicable statute of limitations would bar her from filing a medical negligence survivorship cause of action and, if so, whether equity can override a statute of limitations.
Listen to the oral argument: SC96649 MP3 file
Mickels was represented during arguments by Tom Neill of Gray, Ritter & Graham PC in St. Louis; the medical provider was represented by John Morthland of Wasinger Parham LC in Hannibal.
Ruth Mickels’ husband died in June 2009. Three years later, she and his children filed a wrongful death action, alleging a medical provider failed to diagnose a terminal brain tumor after the husband first sought medical attention. The circuit court dismissed their petition. On appeal, this Court vacated the judgment and remanded (sent back) the case, finding the husband’s personal representative may have the opportunity to sue for negligence for depriving the husband of the opportunity to delay his death. Mickels subsequently opened a probate case and applied to be appointed personal representative of her husband’s estate. The circuit court denied her application, finding it was untimely and barred by section 473.020, RSMo, which requires a personal representative to be appointed within a year of a person’s death. Mickels appeals.
This appeal presents one primary question for this Court – whether this Court’s prior decision in the wrongful death case establishes a new cause of action and, if so, whether equity warrants Mickels’ appointment as personal representative of her husband’s estate. Related issues involve whether, even if Mickels were appointed personal representative, the applicable statute of limitations would bar her from filing a medical negligence survivorship cause of action and, if so, whether equity can override a statute of limitations.