DOCKET SUMMARIES

SUPREME COURT OF MISSOURI

9 a.m. Thursday, September 5, 2019

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SC97622
Donnie Wayne Hounihan v. State of Missouri
Pemiscot County
Challenge to denial of postconviction relief in DWI case
Listen to the oral argument: SC97622 MP3 file
Hounihan was represented during arguments by Scott Thompson of the public defender’s office in St. Louis; the state was represented by Daniel N. McPherson of the attorney general’s office in Jefferson City.

Donnie Wayne Hounihan was arrested and charged, as a chronic offender, for driving while intoxicated as a chronic offender and driving while his license was revoked or suspended. At trial, he presented evidence of certain medical conditions for which he took medications. He was found guilty as charged, and the circuit court sentenced him to concurrent terms totaling seven years in prison. The judgment was affirmed on appeal. Hounihan sought postconviction relief, which the circuit court denied after an evidentiary hearing. Hounihan appeals.

This appeal presents two questions for this Court regarding whether Hounihan’s counsel provided constitutionally ineffective assistance. One involves whether his appellate counsel was ineffective in failing to raise whether there was sufficient evidence to support his conviction for driving while his license was revoked. The other question involves whether his trial counsel was ineffective in failing to call Hounihan’s primary physician to testify as an expert witness about Hounihan’s medical conditions affecting his balance, gait and mental acuity.

SC97622_Hounihan_brief
SC97622_State_brief
SC97622_Hounihan_reply_brief



SC97687
Sharon Newton and Brian Newton v. Mercy Clinic East Communities d/b/a Mercy Clinic OB/GYN and Christina Kay Meddows-Jackson, M.D.
St. Louis County
Challenge to whether statute of limitations tolls medical negligence lawsuit
Listen to the oral argument: SC97687 MP3 file
The Newtons were represented during arguments by Mary Coffey of Coffey & Nichols in St. Louis; the healthcare providers were represented by Jillian K. Van Hoy of Sandberg Phoenix & von Gontard PC in St. Louis.

Sharon Newton and her husband sued Mercy Clinic East Communities, doing business as Mercy Clinic OB/GYN, and Dr. Christina Kay Meddows-Jackson in June 2016 for medical negligence, alleging the doctor negligently removed an ovarian cyst and treated a post-operative infection between July and August 2012, ultimately resulting in Newton’s infertility. The healthcare providers moved for summary judgment (judgment on the pleadings, without a trial). The circuit court granted summary judgment in the healthcare providers’ favor, finding Newton’s last visit to have the infection treated was in February 2013 and, therefore, the suit was untimely under the two-year statute of limitations. The circuit court further found the continuing care exception the Newtons had invoked did not apply to toll the statute of limitations from running through Newton’s 2015 doctor visits. The circuit court determined her post-operative care ended in February 2013 and her January 2015 visit was for a general gynecological examination, creating a new physician-patient relationship. The Newtons appeal.

This appeal presents related questions for this Court – whether the Newtons raised genuine issues of material fact as to the application of the continuing care doctrine and, if so, whether the doctrine tolled the statute of limitations, making their lawsuit timely.

SC97687_Newtons_brief_filed_in_ED
SC97687_healthcare_providers_brief
SC97687_Newtons_corrected_reply_brief



SC97697
State of Missouri v. Mark C. Brandolese
Pettis County
Challenge to convictions for domestic assault and armed criminal action
Listen to the oral argument: SC97697 MP3 file
Brandolese was represented during arguments by Amy M. Bartholow of the public defender’s office in Jefferson City; the state was represented by Evan Buchheim of the attorney general’s office in Jefferson City.

The state tried Mark Brandolese on charges of second-degree domestic assault and armed criminal action following his altercation with his roommate, resulting in injuries to his roommate’s face and chest. These charges required proof that Brandolese “knowingly” caused physical injury to his roommate by cutting him and proof of the “knowing” use, assistance and aid of a dangerous instrument. During jury selection, Brandolese sought to remove for cause a prospective juror – the sister of the assistant county prosecutor who initially indicted him. The circuit court overruled the motion because defense counsel failed to establish the sister was prejudiced. The sister sat on the jury, and the case was tried by the county’s elected prosecutor. The roommate did not appear or testify, but the circuit court permitted – over Brandolese’s hearsay objections – other witnesses’ testimony about the roommate’s statements to them. The circuit court excluded as irrelevant testimony about the victim’s character from his former roommate. Both sides proposed self-defense instructions. The circuit court submitted the state’s proposed instructions over the defense’s objections. During deliberations, the jury asked the circuit court for a clearer definition of “knowingly” used in one of the instructions; the circuit court responded only that the jurors are bound by the law as it had been presented to them. The jury found Brandolese guilty of both charges. The circuit court sentenced him, as a persistent offender, to concurrent terms totaling 15 years in prison. Brandolese appeals.

This appeal presents several questions for this Court. One involves whether the assistant prosecutor’s sister should have been disqualified from serving on the jury as a matter of statutory law and, if so, whether circuit court plainly erred in failing to strike her for cause. Another involves whether the circuit court should have acted on its own to modify, define or remove the “initial aggressor” language in the self-defense instruction, whether the instruction as given failed to provide the jury proper guidance regarding use of deadly versus non-deadly force, and the extent to which the evidence supported using the initial aggressor language. An additional question is whether the circuit court should have responded to the jury’s request for a clearer definition of “knowingly.” Further questions involve whether the circuit court properly excluded the proposed defense witness’s testimony supporting Brandolese’s theory that the roommate was the initial aggressor and whether the circuit court should have excluded hearsay testimony from other witnesses about the roommate’s statements to them.

SC97697_Brandolese_brief
SC97697_State_brief
SC97697_Brandolese_reply_brief



SC97623
State ex rel. Key Insurance Company v. The Honorable Marco A. Roldan
Jackson County
Challenge to exercise of personal jurisdiction over out-of-state insurance company
Listen to the oral argument: SC97623 MP3 file
The insurance company was represented during arguments by James P. Maloney of Foland, Wickens, Roper, Hofer & Crawford PC in Kansas City; Wright was represented by Michael W. Manners of Langdon & Emison in Lexington.

Key Insurance Company is incorporated in and has its principal place of business in Kansas. It is not authorized to sell insurance policies in Missouri. Phillip Nash’s adult daughter applied for an automobile insurance policy from Key to cover vehicles including a Kia Optima. Nash is a Missouri resident; his daughter is a Kansas resident. In her application, she indicated she owned and only she would drive the Optima, which would be garaged at her Kansas residence. She disclosed no other potential drivers on the application. Key initially issued the policy but notified her five days later it was cancelling the policy because she failed to disclose Nash as a potential driver. Less than a week later, Nash was involved in a motor vehicle accident in Missouri with Josiah Wright, a Missouri resident, while Nash was driving the Optima. The police report indicated Nash owned the Optima. Wright reported the accident to Key, which denied coverage. After obtaining an arbitration award against Nash in Missouri, Wright sued Key in Missouri to recover insurance proceeds to satisfy the judgment, alleging Nash was a permissive driver covered under the policy. Nash filed a cross-claim against Key for bad faith and breach of contract. Key moved to dismiss the lawsuit for lack of personal jurisdiction. The circuit court overruled the motion. Key seeks this Court’s permanent writ prohibiting the circuit court from taking any action other than to dismiss the case.

This proceeding presents one question for this Court – whether Key has transacted business in Missouri; committed a tortious act in Missouri; or contracted to insure any person, property or risk in Missouri or has sufficient minimum contacts in Missouri for the circuit court to establish personal jurisdiction over the company.

SC97623_Key_Insurance_brief
SC97623_Nash_and_Wright_brief
SC97623_Key_Insurance_reply_brief



SC97787
State ex rel. Kenneth Zellers, Acting Director of Missouri Department of Revenue v. The Honorable Brenda Stacey
Jefferson County
Proper venue over lawsuit against the director of a state executive department
Listen to the oral argument: SC97787 MP3 file
The director was represented during arguments by Alyssa M. Mayer of the attorney general’s office in Kansas City; the dispatch was represented by Allison M. Sweeney of Robert K. Sweeney LLC in Hllsboro.

Jefferson County 9-1-1 dispatch, a political subdivision, sued the director of revenue in Jefferson County, seeking to enjoin the director from applying a recently enacted statute to the dispatch and a declaratory judgment as to the meaning of two of the statute’s subdivisions. The director moved to change venue to Cole County under Rule 51.045, arguing venue was improper in Jefferson County and proper only in Cole County under the general venue statute, section 508.010.2, RSMo. The dispatch responded by arguing venue was proper in Jefferson County under a more specific venue statute, section 536.050, RSMo, which allows venue in the county of the plaintiff’s residence or registered place of business when the plaintiff seeks a declaratory judgment regarding the validity or threatened application of rules. The circuit court overruled the director’s motion, determining an electronic mail message sent by a department of revenue employee interpreting statutes constituted a rule that was regulatory in nature. The director seeks this Court’s writ prohibiting the circuit court from taking any action other than to transfer venue.

This proceeding presents one question for this Court – whether the general venue statute requires venue in cases against state executive department directors acting in their official capacities to lie solely in Cole County or whether the petition challenges the legitimacy or application of a promulgated rule so as to trigger the more specific venue statute permitting venue elsewhere.

SC97787_Director_brief
SC97787_Jefferson_County_9-1-1_Dispatch_brief