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. Please note, due to construction, no live audio streaming will be available for the arguments in these cases. 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
SC96276
City of Aurora, Missouri, et al. v. Spectra Communications Group LLC d/b/a CenturyLink
St. Louis County
Challenges to judgment regarding city license taxes against telecommunications companies
Listen to the oral argument: SC96276 MP3 file
The cities were represented during arguments by David Streubel of Cunningham, Vogel & Rost PC in St. Louis; CenturyLink was represented by Timothy Beyer of Bryan Cave LLP in Denver, Colorado.
The cities of Aurora, Cameron, Oak Grove and Wentzville impose business license taxes on telephone companies doing business in the cities. These taxes are calculated based on a percentage of the gross receipts of the telephone companies. The cities further impose penalties on companies refusing to abide by the cities’ laws or pay the required license taxes. CenturyLink and its various subsidiaries (collectively, CenturyLink) supply telephone service in the cities and alleges the cities once taxed only telephone services and now tax all services, regardless of whether they are provided within the city. The cities accused CenturyLink of not paying the full amount of license taxes due and, in 2012, sued CenturyLink, seeking, in part, an accounting for the full amounts due under the license taxes; delinquent taxes, interest and penalties; and damages for CenturyLink’s willful violations of the cities’ ordinances. Cameron and Wentzville further sought relief and damages relating to CenturyLink’s alleged violations of their right-of-way ordinances. In January 2013, CenturyLink began making certain tax payments under “protest.” In December 2013, the cities moved for partial summary judgment (judgment on the court filings, without a trial) relating to liability and certain damage issues. After briefing and argument, the circuit court in April 2014 awarded partial summary judgment to the cities, finding CenturyLink failed to pay taxes required by law and owed certain ascertainable damages to the cities as a result of its unlawful conduct as well as attorney fees due to “willful” refusal to comply with the ordinances. In May 2014, CenturyLink filed its answer to the cities’ lawsuit as well as counterclaims against the cities. In April 2016, following cross-motions for summary judgment as to additional issues and multiple hearings, the circuit court granted summary judgment in the cities’ favor as to liability, holding CenturyLink was liable for license taxes for all revenue it receives in each city without regard to the source of the revenue. The circuit court overruled CenturyLink’s subsequent motion to vacate the summary judgments. Following a December 2016 nonjury trial, the circuit court in February 2017 entered its final judgment. In so doing, the circuit court modified its prior summary judgment, holding CenturyLink owed license taxes on all revenue except for carrier access in all the cities and interstate telephone calls in Wentzville. The circuit court held CenturyLink was entitled to a credit against its unpaid tax liability for amounts it paid under protest and calculated damages accordingly but did not award interest on those amounts. The circuit court also awarded Cameron damages for fees under its right-of-way ordinance. Both the cities and CenturyLink appeal.
The cities’ appeal
This appeal presents several questions for this Court. One involves whether the circuit court’s final judgment is inconsistent with its prior summary judgment and, if so, whether the circuit court provided the cities adequate notice and time to respond regarding the issues of liability. Other questions involve whether the circuit court’s prior summary judgment fully determined the issue of CenturyLink’s liability and, if so, whether the circuit court later should have admitted evidence of liability, as well as whether the circuit court’s determination that carrier access revenue in the cities and revenue derived from interstate telephone calls in Wentzville is not taxable properly applied the law and was supported by the evidence. An additional question involves whether the circuit court should have admitted into evidence CenturyLink’s summary of other documents without requiring CenturyLink to establish the competency of the underlying documents or to make the underlying documents available to the cities. A further question involves whether the circuit court’s reduction of damages in accordance with CenturyLink’s summary document properly applied the law and was supported by substantial evidence. Related issues include whether the circuit court should have assessed damages based on the revenue CenturyLink disclosed and admitted was attributable to the cities, whether the award included damages for CenturyLink’s failure to include carrier access receipts and interstate receipts in their gross receipts when paying the tax, the extent to which CenturyLink qualified for any exemption for taxes for carrier or interstate access, and whether revenue attributable to Oak Grove was included in the damages award. An additional question involves whether the circuit court’s decision crediting tax payments CenturyLink said it made under protest properly applied the law and was supported by sufficient evidence. Related issues include whether the cities were entitled to use any protest payments, what evidence supported the amounts or manner in which CenturyLink protested, and whether the circuit court properly calculated interest. A further question involves whether the circuit court should have imposed penalties for CenturyLink’s violations of the cities’ license taxes or of Cameron’s right-of-way code.
CenturyLink’s appeal
This appeal presents several questions for this Court. One involves whether the circuit court properly found Cameron’s and Wentzville’s right-of-way ordinances are valid and enforceable and properly awarded Cameron damages for unpaid fees under its ordinance. Related issues include whether the statute authorizing the right of-way user fee is constitutional, whether CenturyLink waived its challenge by failing to raise it in its motions to dismiss and whether these cities’ right-of-way agreements constitute mandatory “franchises” prohibited by state law. Another question involves whether the circuit court awarded the cities the proper amount of actual damages for unpaid license taxes. Related issues include whether CenturyLink had sources of revenue that should not have been subject to taxation under the ordinances, whether the cities properly established the disputed services occurred “in” or “within” the cities, and whether disputes over license tax payments are subject to a three- or five-year statute of limitations. Additional questions involve whether the circuit court properly ruled on Oak Grove’s claims and whether the franchise agreement or the city’s general utility ordinance controls. Further questions involve whether the circuit court properly calculated prejudgment interest for all four cities and post-judgment interest for Wentzville and whether the cities were entitled to the attorney fees the circuit court awarded them.
Friend of Court briefs
Two organizations filed briefs as friends of the Court. Charter Fiberlink-Missouri LLC and Charter Advanced Services (MO) LLC argue the cities should have brought their ordinance violation claims in their municipal divisions, the statutes governing tax collection are the exclusive remedy to collect delinquent taxes under the cities’ ordinances, any ambiguity in the ordinances should be construed against the cities and in favor of CenturyLink, and the circuit court should not have granted relief to the cities on their declaratory judgment claims. The Missouri Municipal League argues this Court should disregard Charter’s arguments relating to the circuit court’s jurisdiction and construction of the ordinances as neither CenturyLink nor the cities raised these issues. It further argues the circuit court properly exercised jurisdiction over the cities’ claims, properly interpreted the ordinances and properly granted declaratory relief.
SC96276_Cities_first_brief
SC96276_CenturyLink_first_brief
SC96276_Cities_second_brief
SC96276_CenturyLink_second_brief
SC96276_Charter_amici_brief
SC96276_Missouri_Municipal_League_amicus_brief
SC96885
State of Missouri ex rel. Attorney General Joshua D. Hawley and the Board of Trustees of the Missouri Petroleum Storage Tank Insurance Fund v. Pilot Travel Centers LLC
Cole County
Challenges to decision involving state’s petroleum storage tank insurance fund
Listen to the oral argument: SC96885 MP3 file
The attorney general and fund trustees were represented during arguments by Solicitor D. John Sauer of the attorney general’s office in Jefferson City; Pilot was represented by Chad E. Blomberg of Lathrop Gage LLP in Kansas City.
The state’s petroleum storage tank insurance fund gives owners of underground storage tanks the opportunity to insure against petroleum spills. Pursuant to chapter 319, RSMo, a board of trustees oversees the general administration of the fund, including the responsibility for the proper operation of the fund and the authority to make all decisions regarding payments from the fund. Pilot Travel Center’s predecessor applied to the board for insurance coverage, and the two entered into a participation agreement “in return for coverage.” Pilot assumed its predecessor’s agreement and reapplied annually to continue participating in the fund. In June 2007, one of Pilot’s storage tanks in Higginsville spilled petroleum. Pilot filed – and the board fulfilled – requests for reimbursement totaling nearly $724,000. After an investigation revealed the spill had been caused by a defective pipe manufactured by Environ Products, the board sued Environ to recoup the damages the pipe had caused. Pilot, however, ignored years of communications from the board to take over the suit under to the participation agreement. Without Pilot’s cooperation, the board dismissed the suit. The attorney general and board then sued Pilot for breach of contract or, alternatively, for unjust enrichment. In June 2016, the circuit court entered its order dismissing the lawsuit. The circuit court determined the attorney general had no interest in the lawsuit because the fund is separate from the state’s general revenue, leaving the state with no pecuniary interest and the fund with no sovereign immunity. The circuit court further determined the board had no power to sue or enter into subrogation agreements. The attorney general and the board subsequently moved to amend the circuit court’s judgment in light of two opinions from this Court relating to the fund. In October 2016, the circuit court vacated its prior order, issuing a new order in Pilot’s favor in January 2017. The attorney general and board appeal.
This appeal presents several questions for this Court. One involves whether this Court has jurisdiction over the attorney general and board’s appeal of the circuit court’s January 2017 order. Another question involves whether the attorney general and the board have standing (legal authority) to sue on behalf of the fund. Related issues involve whether this suit implicates the state’s interests and, if so, the extent to which the attorney general can bring suits implicating the state’s interests, as well as whether the board has the statutory power to enter into and sue to enforce subrogation agreements as part of its general administration of the insurance fund. An additional question involves whether the circuit court properly dismissed the attorney general and board’s alternative claim for unjust enrichment.
SC96885_Attorney_General_and_Fund_Trustees_brief
SC96885_Pilot_Travel_Centers_brief
SC96885_Attorney_General_and_Fund_Trustees_reply_brief
SC96901
Heather L. Shallow, Michael Bishop and Todd Bishop v. Richard O. Follwell, D.O., and Richard O. Follwell PC
Lincoln County
Challenge to expert testimony during wrongful death trial
Listen to the oral argument: SC96901 MP3 file
The family members were represented during arguments by Amy Collignon Gunn of The Simon Law Firm PC in St. Louis; Follwell was represented by Mark Gonnerman of Gonnerman Reinert LLC in St. Louis.
Dr. Richard Follwell, a general and bariatric surgeon, performed a hernia surgery on Saundra Beaver in November 2012 at the Lincoln County Medical Center. Beaver was discharged the same day but later began complaining of abdominal pain. She was readmitted twice to the medical center before being transferred to a different hospital, which found a bowel perforation and determined she was suffering from septic shock and a wound infection. She underwent multiple surgeries and abdominal treatments over the next seven months and died in July 2013. Beaver’s three adult children subsequently filed a wrongful death lawsuit against Follwell and his medical practice (collectively, Follwell). The family members alleged Follwell negligently perforated their mother’s bowel during the hernia surgery, failed to recognize and treat the bowel perforation, and delayed her ultimate diagnosis and treatment, leading to her additional surgeries and eventual death. The case was tried to a jury in fall 2015. Before trial, the family members moved to exclude the testimony of Follwell’s experts, alleging they all had the same opinions and so their testimony would be cumulative. The circuit court overruled the motion and the family members’ subsequent objections at trial to the testimony of Follwell and his experts. The circuit court also overruled the family members’ objection that Follwell testified differently at trial than in his deposition about a causation issue. The jury returned a verdict for Follwell, and the circuit court entered its judgment accordingly. The family members appeal.
This appeal presents two questions for this Court. The first involves whether the circuit court abused its discretion in permitting all four of Follwell’s experts, in addition to Follwell, to give the same expert opinions for multiple issues. Related issues include whether such testimony was cumulative or prejudicial and the extent to which it mattered the experts were from different specialties with different areas of expertise. The second question involves whether the opinion Follwell offered during his trial testimony differed from the opinion offered in his deposition testimony and, if so, whether the circuit court should have permitted Follwell to offer a new opinion for the first time at trial.
Several organizations filed briefs as friends of the Court. The American and Missouri medical associations argue circuit courts should be granted discretion in determining the specialized expertise necessary to ensure sound science is offered in cases alleging medical negligence. The Missouri Association of Trial Attorneys argues needlessly cumulative expert testimony is prejudicial and interferes with the jury’s ability to weigh evidence on each side of a dispute and, in a medical malpractice context, negatively affects judicial efficiency and hinders litigation. The Missouri Organization of Defense Attorneys contends parties in medical malpractice cases should be permitted to present complex theories requiring multiple medical experts, especially when they represent various specialties, independent of the opposing party’s framework of the case and argues the circuit court struck the appropriate balance in this case.
SC96901_Family_Members_brief
SC96901_Follwell_amended_brief
SC96901_MATA_amicus_brief
SC96901_AMA_and_MO_State_Medical_Ass'n_amici_brief
SC96901_MODL_amicus_brief
SC96909
Lowell Clyde Milner v. State of Missouri
Madison County
Challenge to dismissal of untimely filed motion for postconviction relief
Listen to the oral argument: SC96909 MP3 file
Milner was represented during arguments by Lisa Stroup of the public defender’s office in St. Louis; the state was represented by Evan Buchheim of the attorney general’s office in Jefferson City.
Lowell Clyde Milner pleaded guilty in September 2014 to two felony charges of failing to register as a sex offender. The circuit court sentenced Milner to consecutive prison terms of four years each, suspended execution of the sentences and placed Milner on supervised probation for five years. In February 2016, the circuit court revoked Milner’s probation and executed the sentences. In April 2016, Milner filed a motion for postconviction relief. Counsel appointed to represent Milner sought an extension in which to file an amended motion. Counsel missed the deadline and did not file the amended motion until November 2016, alleging delay because the attorney who represented Milner during his plea proceedings destroyed the original file and postconviction counsel needed additional time to obtain the medical records the original file had contained. The circuit court dismissed the case without an evidentiary hearing. Milner appeals.
This appeal presents one primary question for this Court – whether the circuit court violated Milner’s due process rights by dismissing his untimely amended motion for postconviction relief and, if so, whether he was prejudiced as a result. Related issues include whether Milner or his appointed postconviction counsel was at fault for the untimely filing; and whether his pro se motion was timely and raised facts, which, if proven, would entitle him to relief.
SC96909_Milner_brief
SC96909_State_brief
SC96938
In re: Robert E. Arnold III
Cass County
Attorney discipline
Listen to the oral argument: SC96938 MP3 file
The chief disciplinary counsel’s office was represented during arguments by Kevin Odrowski, an attorney in Kansas City; Arnold was represented by David Larson of Martin, Pringle, Oliver Wallace & Bauer LLP in Kansas City.
During most of the time in question, attorney Robert Arnold III has been a sole practitioner. In July 2011, a woman met with Arnold to discuss potential modification to an April 2011 marriage dissolution judgment relating to child custody, child support and parenting time as well as potential representation in a personal injury claim arising out of a motor vehicle accident in May 2011 in which she sustained injuries. She entered into two attorney-client agreements at the time. One was a retainer agreement for Arnold’s firm to be her “exclusive attorney” in the personal injury suit for a contingency fee of 33 percent of the settlement plus reimbursement of expenses. The second was a retention agreement for limited representation by Arnold’s firm relating to the dissolution judgment. In June 2012, Arnold settled the woman’s personal injury claim for the $25,000 limits of the at fault driver’s insurance policy. Arnold deposited the insurance company’s check – made payable to Arnold’s law firm and his client – into his trust account. Banking records show the $25,000 was transferred from Arnold’s trust account to his law firm’s operating account in July 2012. Arnold and the woman dispute whether he told her about the settlement funds. He alleged she gave him verbal consent during a June 2012 telephone conversation to deposit the check without her signature and to keep the entire settlement amount. The woman alleged Arnold repeatedly told her he did not have the check until she confronted him after contacting the insurance adjuster in December 2012 and receiving a copy of the check. No document in the record memorializes any agreement by the woman to have her portion of the settlement proceeds applied to Arnold’s billings in the family law matter, and no document advises the woman of the receipt or disbursement of the settlement proceeds until April 2013, when she asked for an itemization of the settlement proceeds following a trial on her motion to modify the child custody and visitation judgment. The woman told Arnold by electronic mail she wanted a check for a portion of the proceeds and for her medical bills to be paid in full, accused him of misconduct, and threatened legal action against him. In May 2013, Arnold filed a notice of an attorney lien in the woman’s family law case, alleging she owed him more than $15,700. He also sent a report to the chief disciplinary counsel’s office alleging the woman was attempting to extort money from him. In addition, Arnold filed a separate civil action against the woman, accusing her of extortion and seeking to prevent her from suing him over the settlement proceeds, and the woman filed counterclaims against Arnold. The case was tried to a jury in July 2014. The woman died in September 2014. Following three years of litigation, the circuit court in March 2015 awarded approximately $8,275 (the same amount a jury earlier had awarded her on her conversion claim that Arnold wrongfully took a portion of her settlement proceeds) to the woman’s minor child (her sole heir), approximately $10,370 to Arnold and approximately $6,350 to the woman’s health care providers. The chief disciplinary counsel’s office initiated disciplinary proceedings against Arnold in August 2016, alleging multiple violations of the rules of professional conduct from his representation of the woman and seeking his disbarment. During an evidentiary hearing before a disciplinary hearing panel, Arnold admitted he violated Rules 4 1.15(i) and 4-8.4(c) by misappropriating part of a client’s $25,000 personal injury settlement needed to satisfy medical liens, although he said the misappropriation of trust funds was “innocent.” He denied the other allegations and sought no more than a stayed suspension with probation. In December 2017, the panel issued its decision, finding the evidence supported multiple violations of Rule 4 and recommending Arnold’s law license be suspended for one year, with the suspension stayed during a period of probation. The chief disciplinary counsel rejected the recommendation and asks this Court to disbar Arnold.
This case presents two primary questions for this Court – whether Arnold violated the rules of professional conduct and, if so, what discipline, if any, is appropriate.
SC96938_Chief_Disciplinary_Counsel_brief
SC96938_Arnold_brief
SC96938_Chief_Disciplinary_Counsel_reply_brief
9 a.m. Thursday, May 24, 2018
SC96276
City of Aurora, Missouri, et al. v. Spectra Communications Group LLC d/b/a CenturyLink
St. Louis County
Challenges to judgment regarding city license taxes against telecommunications companies
Listen to the oral argument: SC96276 MP3 file
The cities were represented during arguments by David Streubel of Cunningham, Vogel & Rost PC in St. Louis; CenturyLink was represented by Timothy Beyer of Bryan Cave LLP in Denver, Colorado.
The cities of Aurora, Cameron, Oak Grove and Wentzville impose business license taxes on telephone companies doing business in the cities. These taxes are calculated based on a percentage of the gross receipts of the telephone companies. The cities further impose penalties on companies refusing to abide by the cities’ laws or pay the required license taxes. CenturyLink and its various subsidiaries (collectively, CenturyLink) supply telephone service in the cities and alleges the cities once taxed only telephone services and now tax all services, regardless of whether they are provided within the city. The cities accused CenturyLink of not paying the full amount of license taxes due and, in 2012, sued CenturyLink, seeking, in part, an accounting for the full amounts due under the license taxes; delinquent taxes, interest and penalties; and damages for CenturyLink’s willful violations of the cities’ ordinances. Cameron and Wentzville further sought relief and damages relating to CenturyLink’s alleged violations of their right-of-way ordinances. In January 2013, CenturyLink began making certain tax payments under “protest.” In December 2013, the cities moved for partial summary judgment (judgment on the court filings, without a trial) relating to liability and certain damage issues. After briefing and argument, the circuit court in April 2014 awarded partial summary judgment to the cities, finding CenturyLink failed to pay taxes required by law and owed certain ascertainable damages to the cities as a result of its unlawful conduct as well as attorney fees due to “willful” refusal to comply with the ordinances. In May 2014, CenturyLink filed its answer to the cities’ lawsuit as well as counterclaims against the cities. In April 2016, following cross-motions for summary judgment as to additional issues and multiple hearings, the circuit court granted summary judgment in the cities’ favor as to liability, holding CenturyLink was liable for license taxes for all revenue it receives in each city without regard to the source of the revenue. The circuit court overruled CenturyLink’s subsequent motion to vacate the summary judgments. Following a December 2016 nonjury trial, the circuit court in February 2017 entered its final judgment. In so doing, the circuit court modified its prior summary judgment, holding CenturyLink owed license taxes on all revenue except for carrier access in all the cities and interstate telephone calls in Wentzville. The circuit court held CenturyLink was entitled to a credit against its unpaid tax liability for amounts it paid under protest and calculated damages accordingly but did not award interest on those amounts. The circuit court also awarded Cameron damages for fees under its right-of-way ordinance. Both the cities and CenturyLink appeal.
The cities’ appeal
This appeal presents several questions for this Court. One involves whether the circuit court’s final judgment is inconsistent with its prior summary judgment and, if so, whether the circuit court provided the cities adequate notice and time to respond regarding the issues of liability. Other questions involve whether the circuit court’s prior summary judgment fully determined the issue of CenturyLink’s liability and, if so, whether the circuit court later should have admitted evidence of liability, as well as whether the circuit court’s determination that carrier access revenue in the cities and revenue derived from interstate telephone calls in Wentzville is not taxable properly applied the law and was supported by the evidence. An additional question involves whether the circuit court should have admitted into evidence CenturyLink’s summary of other documents without requiring CenturyLink to establish the competency of the underlying documents or to make the underlying documents available to the cities. A further question involves whether the circuit court’s reduction of damages in accordance with CenturyLink’s summary document properly applied the law and was supported by substantial evidence. Related issues include whether the circuit court should have assessed damages based on the revenue CenturyLink disclosed and admitted was attributable to the cities, whether the award included damages for CenturyLink’s failure to include carrier access receipts and interstate receipts in their gross receipts when paying the tax, the extent to which CenturyLink qualified for any exemption for taxes for carrier or interstate access, and whether revenue attributable to Oak Grove was included in the damages award. An additional question involves whether the circuit court’s decision crediting tax payments CenturyLink said it made under protest properly applied the law and was supported by sufficient evidence. Related issues include whether the cities were entitled to use any protest payments, what evidence supported the amounts or manner in which CenturyLink protested, and whether the circuit court properly calculated interest. A further question involves whether the circuit court should have imposed penalties for CenturyLink’s violations of the cities’ license taxes or of Cameron’s right-of-way code.
CenturyLink’s appeal
This appeal presents several questions for this Court. One involves whether the circuit court properly found Cameron’s and Wentzville’s right-of-way ordinances are valid and enforceable and properly awarded Cameron damages for unpaid fees under its ordinance. Related issues include whether the statute authorizing the right of-way user fee is constitutional, whether CenturyLink waived its challenge by failing to raise it in its motions to dismiss and whether these cities’ right-of-way agreements constitute mandatory “franchises” prohibited by state law. Another question involves whether the circuit court awarded the cities the proper amount of actual damages for unpaid license taxes. Related issues include whether CenturyLink had sources of revenue that should not have been subject to taxation under the ordinances, whether the cities properly established the disputed services occurred “in” or “within” the cities, and whether disputes over license tax payments are subject to a three- or five-year statute of limitations. Additional questions involve whether the circuit court properly ruled on Oak Grove’s claims and whether the franchise agreement or the city’s general utility ordinance controls. Further questions involve whether the circuit court properly calculated prejudgment interest for all four cities and post-judgment interest for Wentzville and whether the cities were entitled to the attorney fees the circuit court awarded them.
Friend of Court briefs
Two organizations filed briefs as friends of the Court. Charter Fiberlink-Missouri LLC and Charter Advanced Services (MO) LLC argue the cities should have brought their ordinance violation claims in their municipal divisions, the statutes governing tax collection are the exclusive remedy to collect delinquent taxes under the cities’ ordinances, any ambiguity in the ordinances should be construed against the cities and in favor of CenturyLink, and the circuit court should not have granted relief to the cities on their declaratory judgment claims. The Missouri Municipal League argues this Court should disregard Charter’s arguments relating to the circuit court’s jurisdiction and construction of the ordinances as neither CenturyLink nor the cities raised these issues. It further argues the circuit court properly exercised jurisdiction over the cities’ claims, properly interpreted the ordinances and properly granted declaratory relief.
SC96276_Cities_first_brief
SC96276_CenturyLink_first_brief
SC96276_Cities_second_brief
SC96276_CenturyLink_second_brief
SC96276_Charter_amici_brief
SC96276_Missouri_Municipal_League_amicus_brief
SC96885
State of Missouri ex rel. Attorney General Joshua D. Hawley and the Board of Trustees of the Missouri Petroleum Storage Tank Insurance Fund v. Pilot Travel Centers LLC
Cole County
Challenges to decision involving state’s petroleum storage tank insurance fund
Listen to the oral argument: SC96885 MP3 file
The attorney general and fund trustees were represented during arguments by Solicitor D. John Sauer of the attorney general’s office in Jefferson City; Pilot was represented by Chad E. Blomberg of Lathrop Gage LLP in Kansas City.
The state’s petroleum storage tank insurance fund gives owners of underground storage tanks the opportunity to insure against petroleum spills. Pursuant to chapter 319, RSMo, a board of trustees oversees the general administration of the fund, including the responsibility for the proper operation of the fund and the authority to make all decisions regarding payments from the fund. Pilot Travel Center’s predecessor applied to the board for insurance coverage, and the two entered into a participation agreement “in return for coverage.” Pilot assumed its predecessor’s agreement and reapplied annually to continue participating in the fund. In June 2007, one of Pilot’s storage tanks in Higginsville spilled petroleum. Pilot filed – and the board fulfilled – requests for reimbursement totaling nearly $724,000. After an investigation revealed the spill had been caused by a defective pipe manufactured by Environ Products, the board sued Environ to recoup the damages the pipe had caused. Pilot, however, ignored years of communications from the board to take over the suit under to the participation agreement. Without Pilot’s cooperation, the board dismissed the suit. The attorney general and board then sued Pilot for breach of contract or, alternatively, for unjust enrichment. In June 2016, the circuit court entered its order dismissing the lawsuit. The circuit court determined the attorney general had no interest in the lawsuit because the fund is separate from the state’s general revenue, leaving the state with no pecuniary interest and the fund with no sovereign immunity. The circuit court further determined the board had no power to sue or enter into subrogation agreements. The attorney general and the board subsequently moved to amend the circuit court’s judgment in light of two opinions from this Court relating to the fund. In October 2016, the circuit court vacated its prior order, issuing a new order in Pilot’s favor in January 2017. The attorney general and board appeal.
This appeal presents several questions for this Court. One involves whether this Court has jurisdiction over the attorney general and board’s appeal of the circuit court’s January 2017 order. Another question involves whether the attorney general and the board have standing (legal authority) to sue on behalf of the fund. Related issues involve whether this suit implicates the state’s interests and, if so, the extent to which the attorney general can bring suits implicating the state’s interests, as well as whether the board has the statutory power to enter into and sue to enforce subrogation agreements as part of its general administration of the insurance fund. An additional question involves whether the circuit court properly dismissed the attorney general and board’s alternative claim for unjust enrichment.
SC96885_Attorney_General_and_Fund_Trustees_brief
SC96885_Pilot_Travel_Centers_brief
SC96885_Attorney_General_and_Fund_Trustees_reply_brief
SC96901
Heather L. Shallow, Michael Bishop and Todd Bishop v. Richard O. Follwell, D.O., and Richard O. Follwell PC
Lincoln County
Challenge to expert testimony during wrongful death trial
Listen to the oral argument: SC96901 MP3 file
The family members were represented during arguments by Amy Collignon Gunn of The Simon Law Firm PC in St. Louis; Follwell was represented by Mark Gonnerman of Gonnerman Reinert LLC in St. Louis.
Dr. Richard Follwell, a general and bariatric surgeon, performed a hernia surgery on Saundra Beaver in November 2012 at the Lincoln County Medical Center. Beaver was discharged the same day but later began complaining of abdominal pain. She was readmitted twice to the medical center before being transferred to a different hospital, which found a bowel perforation and determined she was suffering from septic shock and a wound infection. She underwent multiple surgeries and abdominal treatments over the next seven months and died in July 2013. Beaver’s three adult children subsequently filed a wrongful death lawsuit against Follwell and his medical practice (collectively, Follwell). The family members alleged Follwell negligently perforated their mother’s bowel during the hernia surgery, failed to recognize and treat the bowel perforation, and delayed her ultimate diagnosis and treatment, leading to her additional surgeries and eventual death. The case was tried to a jury in fall 2015. Before trial, the family members moved to exclude the testimony of Follwell’s experts, alleging they all had the same opinions and so their testimony would be cumulative. The circuit court overruled the motion and the family members’ subsequent objections at trial to the testimony of Follwell and his experts. The circuit court also overruled the family members’ objection that Follwell testified differently at trial than in his deposition about a causation issue. The jury returned a verdict for Follwell, and the circuit court entered its judgment accordingly. The family members appeal.
This appeal presents two questions for this Court. The first involves whether the circuit court abused its discretion in permitting all four of Follwell’s experts, in addition to Follwell, to give the same expert opinions for multiple issues. Related issues include whether such testimony was cumulative or prejudicial and the extent to which it mattered the experts were from different specialties with different areas of expertise. The second question involves whether the opinion Follwell offered during his trial testimony differed from the opinion offered in his deposition testimony and, if so, whether the circuit court should have permitted Follwell to offer a new opinion for the first time at trial.
Several organizations filed briefs as friends of the Court. The American and Missouri medical associations argue circuit courts should be granted discretion in determining the specialized expertise necessary to ensure sound science is offered in cases alleging medical negligence. The Missouri Association of Trial Attorneys argues needlessly cumulative expert testimony is prejudicial and interferes with the jury’s ability to weigh evidence on each side of a dispute and, in a medical malpractice context, negatively affects judicial efficiency and hinders litigation. The Missouri Organization of Defense Attorneys contends parties in medical malpractice cases should be permitted to present complex theories requiring multiple medical experts, especially when they represent various specialties, independent of the opposing party’s framework of the case and argues the circuit court struck the appropriate balance in this case.
SC96901_Family_Members_brief
SC96901_Follwell_amended_brief
SC96901_MATA_amicus_brief
SC96901_AMA_and_MO_State_Medical_Ass'n_amici_brief
SC96901_MODL_amicus_brief
SC96909
Lowell Clyde Milner v. State of Missouri
Madison County
Challenge to dismissal of untimely filed motion for postconviction relief
Listen to the oral argument: SC96909 MP3 file
Milner was represented during arguments by Lisa Stroup of the public defender’s office in St. Louis; the state was represented by Evan Buchheim of the attorney general’s office in Jefferson City.
Lowell Clyde Milner pleaded guilty in September 2014 to two felony charges of failing to register as a sex offender. The circuit court sentenced Milner to consecutive prison terms of four years each, suspended execution of the sentences and placed Milner on supervised probation for five years. In February 2016, the circuit court revoked Milner’s probation and executed the sentences. In April 2016, Milner filed a motion for postconviction relief. Counsel appointed to represent Milner sought an extension in which to file an amended motion. Counsel missed the deadline and did not file the amended motion until November 2016, alleging delay because the attorney who represented Milner during his plea proceedings destroyed the original file and postconviction counsel needed additional time to obtain the medical records the original file had contained. The circuit court dismissed the case without an evidentiary hearing. Milner appeals.
This appeal presents one primary question for this Court – whether the circuit court violated Milner’s due process rights by dismissing his untimely amended motion for postconviction relief and, if so, whether he was prejudiced as a result. Related issues include whether Milner or his appointed postconviction counsel was at fault for the untimely filing; and whether his pro se motion was timely and raised facts, which, if proven, would entitle him to relief.
SC96909_Milner_brief
SC96909_State_brief
SC96938
In re: Robert E. Arnold III
Cass County
Attorney discipline
Listen to the oral argument: SC96938 MP3 file
The chief disciplinary counsel’s office was represented during arguments by Kevin Odrowski, an attorney in Kansas City; Arnold was represented by David Larson of Martin, Pringle, Oliver Wallace & Bauer LLP in Kansas City.
During most of the time in question, attorney Robert Arnold III has been a sole practitioner. In July 2011, a woman met with Arnold to discuss potential modification to an April 2011 marriage dissolution judgment relating to child custody, child support and parenting time as well as potential representation in a personal injury claim arising out of a motor vehicle accident in May 2011 in which she sustained injuries. She entered into two attorney-client agreements at the time. One was a retainer agreement for Arnold’s firm to be her “exclusive attorney” in the personal injury suit for a contingency fee of 33 percent of the settlement plus reimbursement of expenses. The second was a retention agreement for limited representation by Arnold’s firm relating to the dissolution judgment. In June 2012, Arnold settled the woman’s personal injury claim for the $25,000 limits of the at fault driver’s insurance policy. Arnold deposited the insurance company’s check – made payable to Arnold’s law firm and his client – into his trust account. Banking records show the $25,000 was transferred from Arnold’s trust account to his law firm’s operating account in July 2012. Arnold and the woman dispute whether he told her about the settlement funds. He alleged she gave him verbal consent during a June 2012 telephone conversation to deposit the check without her signature and to keep the entire settlement amount. The woman alleged Arnold repeatedly told her he did not have the check until she confronted him after contacting the insurance adjuster in December 2012 and receiving a copy of the check. No document in the record memorializes any agreement by the woman to have her portion of the settlement proceeds applied to Arnold’s billings in the family law matter, and no document advises the woman of the receipt or disbursement of the settlement proceeds until April 2013, when she asked for an itemization of the settlement proceeds following a trial on her motion to modify the child custody and visitation judgment. The woman told Arnold by electronic mail she wanted a check for a portion of the proceeds and for her medical bills to be paid in full, accused him of misconduct, and threatened legal action against him. In May 2013, Arnold filed a notice of an attorney lien in the woman’s family law case, alleging she owed him more than $15,700. He also sent a report to the chief disciplinary counsel’s office alleging the woman was attempting to extort money from him. In addition, Arnold filed a separate civil action against the woman, accusing her of extortion and seeking to prevent her from suing him over the settlement proceeds, and the woman filed counterclaims against Arnold. The case was tried to a jury in July 2014. The woman died in September 2014. Following three years of litigation, the circuit court in March 2015 awarded approximately $8,275 (the same amount a jury earlier had awarded her on her conversion claim that Arnold wrongfully took a portion of her settlement proceeds) to the woman’s minor child (her sole heir), approximately $10,370 to Arnold and approximately $6,350 to the woman’s health care providers. The chief disciplinary counsel’s office initiated disciplinary proceedings against Arnold in August 2016, alleging multiple violations of the rules of professional conduct from his representation of the woman and seeking his disbarment. During an evidentiary hearing before a disciplinary hearing panel, Arnold admitted he violated Rules 4 1.15(i) and 4-8.4(c) by misappropriating part of a client’s $25,000 personal injury settlement needed to satisfy medical liens, although he said the misappropriation of trust funds was “innocent.” He denied the other allegations and sought no more than a stayed suspension with probation. In December 2017, the panel issued its decision, finding the evidence supported multiple violations of Rule 4 and recommending Arnold’s law license be suspended for one year, with the suspension stayed during a period of probation. The chief disciplinary counsel rejected the recommendation and asks this Court to disbar Arnold.
This case presents two primary questions for this Court – whether Arnold violated the rules of professional conduct and, if so, what discipline, if any, is appropriate.
SC96938_Chief_Disciplinary_Counsel_brief
SC96938_Arnold_brief
SC96938_Chief_Disciplinary_Counsel_reply_brief