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. Tuesday, September 18, 2018
SC97018
Lewis Soars v. Easter Seals Midwest and Charity Twine
St. Charles County
Challenge to failure to compel arbitration in employment case
Listen to the oral argument: SC97018 MP3 file
Easter Seals and Twine were represented during arguments by Charles E. Reis IV of Littler Mendelson PC in St. Louis; Soars was represented by Bret Kleefus of The Law Offices of Derald Gab PC in St. Louis.
Lewis Soars began working for Easter Seals Midwest in October 2015 as a community living instructor for individuals with developmental disabilities. His supervisor was Charity Twine. During his orientation, Soars signed an arbitration agreement. Easter Seals terminated Soars’ employment in January 2016. He alleges it was because he reported other employees were smoking marijuana at work; Easter Seals alleges it was because he refused to participate in an internal investigation of accusations he abused or neglected Easter Seals clients. In November 2016, Soars sued Easter Seals and Twine (collectively, Easter Seals), claiming discrimination and wrongful termination in violation of public policy. Arguing the claims are subject to binding arbitration, Easter Seals moved to dismiss the lawsuit or, alternatively, to stay the proceedings and compel arbitration pursuant to the federal arbitration act. Soars alleged the arbitration agreement and its delegation clause lacked consideration, lacked mutual obligation and were unconscionable. The circuit court overruled Easter Seals’ motions. Easter Seals appeals.
This appeal presents several questions for this Court involving whether the circuit court should have compelled arbitration. One is whether a valid agreement to arbitrate exists between the parties. Related issues include whether the parties formed a valid contract, whether any mutual agreement to arbitrate constitutes valid consideration for the contract and whether the arbitration agreement covers Soars’ employment-related claims. Another question is whether the arbitration agreement contains valid delegation clauses giving an arbitrator – rather than a court – exclusive authority to decide issues involving the interpretation, applicability, enforceability or formation of the arbitration agreement. Related issues include whether delegation clauses are valid under state and federal law and whether the federal act requires arbitration of Soars’ claims. An additional question involves whether the arbitration agreement was unconscionable or otherwise unenforceable. Related issues include whether Easter Seals waived any right to arbitrate Soars’ claims and, if any of the terms of the agreement are unconscionable or unenforceable, whether such terms can be severed so the rest of the agreement can be enforced.
Note: Due to similarities in the next two cases (SC96985 and SC96986), they will be argued together.
SC96985
State ex rel. Jesse Newberry v. The Honorable Steve Jackson
Laclede County
Challenge to order compelling arbitration in employment case
Listen to the oral argument: SC96985 and SC96986 MP3 file
This case was consolidated with SC96986 for arguments, during which Newberry was represented by Kirk Rahm of Rahm, Rahm & McVay PC in Warrensburg, and Dollar General was represented by Rene Duckworth of Ogletree, Deakins, Nash, Smoak & Stewart PC in St. Louis.
Jesse Newberry began working for Dolgencorp LLC in 2001 as a Dollar General store manager. In August 2014, the company presented its employees with an arbitration program to resolve employment disputes, and Newberry electronically signed the agreement after he says his supervisor told him failing to do so would be grounds for discharge. He subsequently alleged he experienced age and disability discrimination at work, followed by retaliation. His employment was terminated in June 2016. Newberry filed a lawsuit against the company and his supervisors (collectively, Dollar General) alleging discrimination and retaliation. Dollar General moved to stay the proceedings and compel arbitration. Following an evidentiary hearing, the circuit court sustained the motion, compelling arbitration. Newberry seeks this Court’s writ prohibiting the circuit court from enforcing its order.
This case presents one primary question for this Court – whether Newberry is entitled to a writ prohibiting the circuit court from compelling arbitration. Related issues include whether Dollar General showed the arbitration agreement or its delegation provision was supported by consideration, whether the delegation provision clearly and unmistakably gives an arbitrator sole authority to determine the agreement’s validity, whether Newberry properly challenged the delegation provision, and, if deemed invalid, whether the delegation provision can be severed from the rest of the agreement, leaving the arbitration agreement enforceable.
SC96986
State ex rel. Becky Lowrance v. The Honorable Steve Jackson
Laclede County
Challenge to order compelling arbitration in employment case
Listen to the oral argument: SC96985 and SC96986 MP3 file
This case was consolidated with SC96985 for arguments, during which Lowrance was represented by Kirk Rahm of Rahm, Rahm & McVay PC in Warrensburg, and Dollar General was represented by Rene Duckworth of Ogletree, Deakins, Nash, Smoak & Stewart PC in St. Louis.
Becky Lowrance began working for Dolgencorp LLC as a Dollar General store manager in November 2012. In August 2014, the company presented its employees with an arbitration program to resolve employment disputes, and Lowrance electronically signed the agreement after she says her supervisor told her failing to do so might cause her to lose her job. Lowrance subsequently alleged she experienced sex, age and disability discrimination at work. Her employment was terminated in October 2016. Lowrance filed a lawsuit against the company and her supervisors (collectively, Dollar General) alleging discrimination. Dollar General moved to stay the proceedings and compel arbitration. Following an evidentiary hearing, the circuit court sustained the motion, compelling arbitration. Lowrance seeks this Court’s writ prohibiting the circuit court from enforcing its order.
This case presents one primary question for this Court – whether Lowrance is entitled to a writ prohibiting the circuit court from compelling arbitration. Related issues include whether Dollar General showed the arbitration agreement or its delegation clause was supported by consideration, whether the delegation clearly and unmistakably gives an arbitrator sole authority to determine the agreement’s validity, whether Lowrance properly challenged the delegation provision, and, if deemed valid, whether the delegation clause can be severed from the rest of the agreement, leaving the arbitration agreement enforceable.
SC96633
Lance C. Shockley v. State of Missouri
Carter County
Challenge to denial of postconviction relief in a death penalty case
Listen to the oral argument: SC96633 MP3 file
Shockley was represented during arguments by Bill Swift of the public defender’s office in Columbia; the state was represented by Dan McPherson of the attorney general’s office in Jefferson City.
Following a March 2009 trial, a jury found Shockley guilty of first-degree murder in the March 2005 shooting death of a highway patrol sergeant. The sergeant had been investigating a November 2004 accident in which Shockley lost control of the vehicle he was driving, his passenger died as a result and Shockley then left the scene of the accident. Although the jury found the state proved three statutory aggravating circumstances beyond a reasonable doubt, it was unable to agree on punishment. The circuit court imposed a death sentence. On direct appeal, this Court affirmed the judgment. Shockley subsequently sought postconviction relief. Following an evidentiary hearing, the circuit court denied relief. Shockley appeals.
This appeal presents a number of questions for this Court involving whether Shockley received ineffective assistance of counsel and, if so, whether his constitutional rights were violated or he otherwise was prejudiced. Several questions relate to jury selection. One involves a juror who had written and published a semiautobiographical crime novel and the extent to which he had the novel with him during trial and shared it with fellow jurors. Related issues involve whether counsel should have questioned the juror about the novel’s subject matter and then moved to strike the juror for cause; whether counsel should have called the trial judge and other witnesses to testify during the hearing on Shockley’s motion for a new trial about the extent to which the juror violated the circuit court’s directive prohibiting jurors – who were sequestered – from having any material relating to crime or legal subjects; and whether such conduct constituted juror misconduct warranting a new trial. Another question involves whether another juror was more inclined to impose death rather than a sentence of life in prison and, if so, whether counsel should have moved to strike this juror for cause. Additional questions relate to the guilt phase of the trial. Some of these questions involve whether counsel should have failed to call a ballistics expert to testify whether a particular weapon could have fired the fatal shot, should have called Shockley’s grandfather to testify whether Shockley had inherited a particular rifle or should have objected to a demonstrative exhibit displaying a particular weapon. Other questions involve whether certain individuals could have provided an alibi for Shockley; whether another individual could have corroborated Shockley’s defense that another person shot the sergeant; and, if so, whether counsel should have presented testimony from these individuals. Additional questions involve whether counsel should have impeached one of the state’s witnesses about a vehicle the state argued Shockley used to get to the sergeant’s home; whether a certain statement by the prosecutor was a comment about Shockley’s constitutional right to remain silent; and, if so, whether counsel should have objected, requested a curative instruction or asked for a mistrial. Questions involving the penalty phase of the trial include whether counsel should have objected to certain victim impact evidence and should have called certain witnesses to offer mitigating evidence. Another question is whether Shockley’s appellate counsel improperly raised certain claims he raised on direct appeal challenging the circuit court’s failure to grant a mistrial. Further questions involve whether counsel should have objected to a visible police presence in and around the courthouse during Shockley’s trial and whether the state improperly failed to disclose certain evidence allegedly relating to other possible suspects in the sergeant’s shooting.
SC97207
In re: R. Scott Gardner
Pettis County
Attorney discipline
Listen to the oral argument: SC97207 MP3 file
The chief disciplinary counsel’s office was represented by Chief Disciplinary Counsel Alan Pratzel of the office in Jefferson City; Gardner was represented by Sara Rittman of Rittman Law LLC in Jefferson City.
Scott Gardner is engaged in the solo practice of law in Sedalia, focusing significantly on probate work. In 2014, he was appointed to serve as personal representative for a deceased person’s estate in Pettis County. In February 2015, he moved for approval of payment of approximately $30,000 in personal representative fees. The circuit court overruled the motion, finding Gardner was seeking more than the amount authorized by statute. It further held it did not wish to authorize early payment of partial fees to maintain Gardner’s incentive, as personal representative, to finalize the estate proceedings. The circuit court authorized Gardner to pay himself an advance personal representative fee of $15,000, to be deducted from the final calculation of fees due Gardner at the close of the estate. Gardner paid himself the $15,000 that month. Four months later, Gardner made another payment to himself of nearly $15,500 but did not seek the circuit court’s permission to do so. In September 2015, Gardner filed a petition to approve final settlement of the estate but failed to include the June 2015 payment to himself in the final settlement. After its own investigation of the estate’s bank records revealed the extra payment, the circuit court ordered Gardner to show cause why he made the extra payment to himself without the court’s permission and why he should not be held in contempt as a result. Gardner informally apologized. The circuit court found him in contempt and ultimately ordered him to restore to the estate the amount of the unauthorized payment. Following further litigation, the circuit court removed Gardner as personal representative, appointed a successor and entered an order paying $2,500 of what would have been Gardner’s fee to the successor personal representative. The matter ultimately was heard by a disciplinary hearing panel. The panel found Gardner violated the rules of professional responsibility by paying himself the extra fee without court approval, even if he thought he was doing so to save an unknown amount of taxes the estate might owe, and there was no reason he could not have sought court approval. The panel recommended his law license be suspended with no leave to apply for reinstatement for at least six months. Gardner rejected the recommendation, arguing he should be subject to no more than an admonition or reprimand. The chief disciplinary counsel now asks this Court to issue the discipline the panel recommended.
This case presents two questions for this Court – whether Gardner violated the rules of professional responsibility and, if so, what discipline, if any, is appropriate.
Listen to the oral argument: SC97207 MP3 file
The chief disciplinary counsel’s office was represented by Chief Disciplinary Counsel Alan Pratzel of the office in Jefferson City; Gardner was represented by Sara Rittman of Rittman Law LLC in Jefferson City.
Scott Gardner is engaged in the solo practice of law in Sedalia, focusing significantly on probate work. In 2014, he was appointed to serve as personal representative for a deceased person’s estate in Pettis County. In February 2015, he moved for approval of payment of approximately $30,000 in personal representative fees. The circuit court overruled the motion, finding Gardner was seeking more than the amount authorized by statute. It further held it did not wish to authorize early payment of partial fees to maintain Gardner’s incentive, as personal representative, to finalize the estate proceedings. The circuit court authorized Gardner to pay himself an advance personal representative fee of $15,000, to be deducted from the final calculation of fees due Gardner at the close of the estate. Gardner paid himself the $15,000 that month. Four months later, Gardner made another payment to himself of nearly $15,500 but did not seek the circuit court’s permission to do so. In September 2015, Gardner filed a petition to approve final settlement of the estate but failed to include the June 2015 payment to himself in the final settlement. After its own investigation of the estate’s bank records revealed the extra payment, the circuit court ordered Gardner to show cause why he made the extra payment to himself without the court’s permission and why he should not be held in contempt as a result. Gardner informally apologized. The circuit court found him in contempt and ultimately ordered him to restore to the estate the amount of the unauthorized payment. Following further litigation, the circuit court removed Gardner as personal representative, appointed a successor and entered an order paying $2,500 of what would have been Gardner’s fee to the successor personal representative. The matter ultimately was heard by a disciplinary hearing panel. The panel found Gardner violated the rules of professional responsibility by paying himself the extra fee without court approval, even if he thought he was doing so to save an unknown amount of taxes the estate might owe, and there was no reason he could not have sought court approval. The panel recommended his law license be suspended with no leave to apply for reinstatement for at least six months. Gardner rejected the recommendation, arguing he should be subject to no more than an admonition or reprimand. The chief disciplinary counsel now asks this Court to issue the discipline the panel recommended.
This case presents two questions for this Court – whether Gardner violated the rules of professional responsibility and, if so, what discipline, if any, is appropriate.