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or cited as such. Once cases are docketed, the briefs filed by the
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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI
9 a.m. Wednesday, September 4, 2019
SC97626
Sophian Plaza Association, et al. v. City of Kansas City, Missouri
Platte County
Challenge to judgment finding breach of contract and civil contempt arising from 1976 stipulation and judgment
Listen to the oral argument: SC97626 MP3 file
Kansas City was represented during arguments by Tara M. Kelley of the city attorney’s office in Kansas City; the apartment and condominium associations were represented by Edward D. Robertson III of Bartimus Frickleton Robertson Rader PC in Jefferson City.
In the early 1970s, Kansas City passed an ordinance providing free refuse-collection services to single-family homes but not to trailer parks or buildings with seven or more dwelling units. A group of 15 plaintiffs subsequently sued the city for violating equal protection by excluding such residences from the city-provided trash service. In 1976, the circuit court found the ordinance violated equal protection and ordered the city to collect refuse from the 15 plaintiffs. The city subsequently entered into a stipulation agreeing to provide residential refuse services to the 15 plaintiffs or pay $1.15 per month per occupied dwelling unit in lieu of providing the services. The circuit court then modified its judgment and issued an injunction requiring the city to provide refuse collection services, or their cash equivalent, to the plaintiffs’ properties “and others similarly situated” that were not parties to the litigation. The modified judgment incorporated the stipulation’s agreement that it would terminate only when the city terminated citywide services to privately owned dwelling units. In 2004, the city changed its residential refuse ordinances. In 2010, the city eliminated the rebate program except for members of a large apartment association with which the city had reached an agreement to continue refuse-collection services. Five years later, other apartment and condominium associations filed a class-action lawsuit raising breach of contract and civil contempt claims. Following a trial, the circuit court found the city intentionally violated the 1976 injunction and entered a judgment awarding nearly $10.3 million in damages and approximately $4.1 million in attorney fees to the apartment and condominium associations. The city appeals.
This appeal presents several questions for this Court. One involves whether the class members were parties to the original 1976 lawsuit, stipulation and judgment, whether a statute authorizes third-party beneficiaries to sue a municipality, or whether the class otherwise lacked standing to bring the current action. Other questions involve whether the circuit court had personal jurisdiction over the city and “similarly situated parties” to enter its 1976 judgment and whether the judgment, by dictating the specifics of a solid waste ordinance, encroached on the city’s legislative powers in violation of the separation of powers guaranteed in article II, section 1 of the state constitution. Additional questions involve whether the 1976 stipulation failed to comply with state law, was outside the scope of the city’s powers, failed to bind the city or otherwise was void. Further questions involve whether the judgment currently on appeal is supported by sufficient evidence or violates separation of powers and whether the circuit court has the authority to order the city to pay attorney fees.
Listen to the oral argument: SC97626 MP3 file
Kansas City was represented during arguments by Tara M. Kelley of the city attorney’s office in Kansas City; the apartment and condominium associations were represented by Edward D. Robertson III of Bartimus Frickleton Robertson Rader PC in Jefferson City.
In the early 1970s, Kansas City passed an ordinance providing free refuse-collection services to single-family homes but not to trailer parks or buildings with seven or more dwelling units. A group of 15 plaintiffs subsequently sued the city for violating equal protection by excluding such residences from the city-provided trash service. In 1976, the circuit court found the ordinance violated equal protection and ordered the city to collect refuse from the 15 plaintiffs. The city subsequently entered into a stipulation agreeing to provide residential refuse services to the 15 plaintiffs or pay $1.15 per month per occupied dwelling unit in lieu of providing the services. The circuit court then modified its judgment and issued an injunction requiring the city to provide refuse collection services, or their cash equivalent, to the plaintiffs’ properties “and others similarly situated” that were not parties to the litigation. The modified judgment incorporated the stipulation’s agreement that it would terminate only when the city terminated citywide services to privately owned dwelling units. In 2004, the city changed its residential refuse ordinances. In 2010, the city eliminated the rebate program except for members of a large apartment association with which the city had reached an agreement to continue refuse-collection services. Five years later, other apartment and condominium associations filed a class-action lawsuit raising breach of contract and civil contempt claims. Following a trial, the circuit court found the city intentionally violated the 1976 injunction and entered a judgment awarding nearly $10.3 million in damages and approximately $4.1 million in attorney fees to the apartment and condominium associations. The city appeals.
This appeal presents several questions for this Court. One involves whether the class members were parties to the original 1976 lawsuit, stipulation and judgment, whether a statute authorizes third-party beneficiaries to sue a municipality, or whether the class otherwise lacked standing to bring the current action. Other questions involve whether the circuit court had personal jurisdiction over the city and “similarly situated parties” to enter its 1976 judgment and whether the judgment, by dictating the specifics of a solid waste ordinance, encroached on the city’s legislative powers in violation of the separation of powers guaranteed in article II, section 1 of the state constitution. Additional questions involve whether the 1976 stipulation failed to comply with state law, was outside the scope of the city’s powers, failed to bind the city or otherwise was void. Further questions involve whether the judgment currently on appeal is supported by sufficient evidence or violates separation of powers and whether the circuit court has the authority to order the city to pay attorney fees.
SC96528
Thomas E. Tharp, et al. v. St. Luke's Surgicenter-Lee's Summit LLC
Jackson County
Appropriate disposition of case following appeal
Listen to the oral argument: SC96528 MP3 file
The Tharps were represented during arguments by William McIntosh of The McIntosh Law Firm PC in Kansas City; St. Luke’s was represented by Teresa M. Young of Brown & James PC in St. Louis.
Thomas Tharp sued St. Luke’s Surgicenter-Lee’s Summit LLC, alleging it negligently granted surgical privileges to the surgeon who removed his gall bladder. A jury rendered its verdict in Tharp’s favor, and the circuit court entered its judgment accordingly. Both Tharp and St. Luke’s appealed. This Court reversed the judgment, finding Tharp failed to present sufficient evidence supporting his negligent credentialing claim.
This Court granted rehearing and ordered the parties to file briefs regarding whether it should remand (send back) the case for a new trial or enter judgment in St. Luke’s favor.
SC97653
City of Crestwood, et al. v. Affton Fire Protection District, et al.
Cole County
Challenge to constitutional validity of statutes governing annexation and relationship with fire protection district in St. Louis County
Listen to the oral argument: SC97653 MP3 file
The city and taxpayers were represented during arguments by William Ray Price Jr. of Armstrong Teasdale LLP in St. Louis. The fire protection district was represented by James R. Layton of Tueth Keeney Cooper Mohan & Jackstadt PC in St. Louis; the state was represented by Emily A. Dodge of the attorney general’s office in Jefferson City.
Crestwood is a constitutional charter city in St. Louis County. The Affton fire protection district provides services in an unincorporated portion of the county adjacent to Crestwood. Both the city and the fire district levy and collect certain property taxes from those living inside their boundaries. In 1997, Crestwood annexed unincorporated territory within the fire district’s boundaries. Since then, section 72.418 has required the city to pay the fire district an amount equal to what the fire district would have levied on all taxable property within the annexed area – totaling more than $6 million. The fire district has continued to provide services within the annexed area but has not collected its own taxes within that area. In 2012 and 2017, the fire district held elections to increase its annual property tax rate and elect directors. Voters in the fire district – including those in the annexed territory – approved the increases and the directors. Gregg Roby and Stefani Hoeing live in Crestwood but not in the annexed area; therefore, they were ineligible to vote in the fire district’s elections for tax increases or directors. They, however, do pay taxes to Crestwood, which in turn pays the fire district. Crestwood and the two taxpayers filed a lawsuit against the fire district and the state alleging sections 72.418 and 321.322 were unconstitutional and seeking to enjoin enforcement of the statutes. The circuit court granted summary judgment (judgment on the pleadings, without a trial) in favor of the district and the state, finding the statutes are constitutional. Crestwood and the two taxpayers appeal.
This appeal presents several questions for this Court involving the constitutional validity of sections 72.418 and 321.322, RSMo. A preliminary question is whether Crestwood or the taxpayers timely asserted their claims. Another question involves whether the statutes apply only to cities in St. Louis County and their inhabitants in perpetuity; prevent Crestwood from enforcing its ordinances or providing or negotiating for fire protection services; have immutable rather than open-ended characteristics; or otherwise are special laws in violation of article III, section 40(30). Additional questions involve whether section 72.418 mandates a municipal tax rate exceeding $1 per $100 of assessed valuation without a two-thirds vote of the municipality’s qualified voters in violation of article X, section 11 or diverts tax dollars to another political subdivision without an opportunity for taxpayers to object, block a transfer, hold the receiving officials accountable or otherwise deprives taxpayers of their property without due process of law in violation of article I, section 10. Further questions involve whether section 72.418 requires Crestwood to take on new or increased activities by financing operations of the adjacent Affton fire protection district without a state appropriation in violation of article X, sections 16 and 21 and whether the increase to the fire district’s taxes without a vote by Crestwood taxpayers violates article X, sections 16 and 22.
SC97653_Crestwood_and_taxpayers_brief
SC97653_Affton_Fire_Protection_District_et_al._brief
SC97653_Crestwood_and_taxpayers_reply_brief
Note: By order dated January 14, 2020, the Court permitted limited supplemental briefing.
SC97653_Crestwood_and_taxpayers_supplemental_brief
SC97653_Affton_Fire_Protection_District_et_al._supplemental_brief
SC97582
Interventional Center for Pain Management v. Director of Revenue
St. Louis
Applicability of use tax exemption to medical supplies used to compound medications
Listen to the oral argument: SC97582 MP3 file
The center was represented during arguments by Paul L. Brusati of Armstrong Teasdale LLP in St. Louis; the director was represented by Deputy Solicitor General Julie M. Blake of the attorney general’s office in Jefferson City.
The Interventional Center for Pain Management treats and manages its patients’ pain. To do so, it purchases drugs, and its physician uses needles, syringes and trays to compound medications to obtain a therapeutic effect for its patients. The compounds are formulated for specific disease or joint to be treated, not the individual patients. Following an audit, the state’s director of revenue assessed use taxes on certain medical items the center purchased out-of-state, without paying tax, for use in compounding medications. The center sought review from the administrative hearing commission. The commission ultimately held the center’s process of creating the medications constituted “compounding” under the relevant state regulation but does not rise to the level of large-scale industrial activity; each compounded drug was marketable to various patients suffering from similar conditions and, therefore, is a “product” as defined by state tax law; and the items the center purchased were used in compounding products. But the commission held these items were not raw products from which something is made and, therefore, are not “materials” subject to the use tax exemption in section 144.054.2, RSMo. Instead, the commission found, the items are more closely associated with “supplies,” which are not exempted under section 144.054.2. It further found the center did not prove all the disputed items were used to compound medication. The center appeals.
This appeal presents one question for this Court – whether the center’s activities and its items fall within the section 144.054.2 exemption from use tax. Related issues include whether the center is a manufacturer or service provider; whether the items are used to perform medical services or to compound a product for sale; and whether the center proved all the items for which it sought an exemption are used to compound drugs.
SC97582_Interventional_Center_for_Pain_Management_brief
SC97582_Director_brief
SC97682
In re: Stephen G. Bell
St. Louis
Attorney discipline
Listen to the oral argument: SC97682 MP3 file
The chief disciplinary counsel was represented during arguments by Marc A. Lapp, a special representative of the office and an attorney in St. Louis; Bell was represented by Michael P. Downey of Downey Law Group LLP in St. Louis.
In March 2016, a woman consulted St. Louis attorney Stephen Bell about her marriage to a man who had become addicted to pain killers. The woman determined she did not want to pursue a divorce at that time. In June 2016, the woman’s husband was indicted on felony charges, and she asked Bell to help her retain custody of her two children and begin dissolution proceedings. They subsequently began communicating socially via frequent text messaging and telephone calls. Bell filed the dissolution petition in August. One night in September 2016, Bell and the woman became sexually intimate. After their encounter, Bell discontinued his personal communication with the woman, and little happened in her dissolution case. She terminated Bell as her attorney in December 2016 and hired new counsel, who completed the dissolution in July 2017. The woman subsequently filed a complaint against Bell with the chief disciplinary counsel’s office, which instituted disciplinary proceedings. During a hearing before a disciplinary hearing panel, Bell admitted he engaged in sexual relations with his client but argued it was a single instance of voluntary, consensual, noncoital intimacy instigated by the woman and which he regretted. The panel found, by engaging in sexual relations with his client, Bell violated Rules 4-1.7(a)(2), 4-1.8(j) and 4-8.4(d). It also found mitigating evidence that Bell had no disciplinary history in his 37-year career, understood his mistake and would not engage in this misconduct again. The panel recommended Bell’s law license be suspended indefinitely with no leave to apply for reinstatement for six months, the suspension be stayed and Bell be placed on six months’ probation. The chief disciplinary counsel rejected the recommendation and asks this Court to suspend Bell’s license with no leave to apply for reinstatement for six months.
This case presents two questions for this Court – whether Bell violated the rules of professional responsibility and, if so, what discipline, if any, is appropriate.
SC97682_Chief_Disciplinary_Counsel_brief
SC97682_Bell_brief