Case Summary for January 22, 2009

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Case Summary for January 22, 2009

THE FOLLOWING DOCKET SUMMARIES ARE PREPARED BY THE COURT'S STAFF FOR THE INTEREST AND CONVENIENCE OF THE READER. THE SUMMARIES MAY NOT INCLUDE ALL ISSUES PENDING BEFORE THE COURT AND DO NOT REFLECT ANY OPINION OF THE COURT ON THE MERITS OF A CASE. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION. SUMMARIES ARE UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

Attached to the following docketed cases are electronic copies of briefs filed by the parties. These electronic briefs have been converted to PDF to accommodate various word processors. If you do not already have Acrobat reader, which is necessary to open the PDFs, you may obtain it free at the Adobe website. (A set of free tools that allow visually disabled users to read documents in Adobe PDF format is available from access.adobe.com.) These briefs do not reflect any opinion of the Court about the appropriateness of the format of the briefs or the merits of the case, nor are they official court records. Copies of all briefs filed with the Court are available at the Supreme Court Building in the court en banc division.

The attachments below may not reflect all briefs filed with the Court, the complete filing or the format of the original filing. Appendices and other attachments generally will not be posted here. To see what documents have been filed in a particular case, visit Case.net.

DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

10 a.m. Thursday, January 22, 2008

____________________________________________________________________

SC89605
Timothy Coffer v. Angela Wasson-Hunt, et al.
Jackson County
Termination of police officer and timing of circuit court's filing
Listen to the oral argument:

Coffer was represented during argument by Michael Belancio and John O'Connor of Kansas City, and the board was represented by William Quirk of Shughart, Thomson & Kilroy, P.C. in Kansas City.

Kansas City police officer Timothy Coffer was terminated by the police chief in June 2004 in connection with his actions in arresting a fleeing drunk driver. He allegedly used excessive force on the arrested individual, spit on him, directed profanity towards him and was uncooperative and deliberately distorted the truth in connection with the November 2003 investigation of the incident. Coffer appealed the termination and, in June 2005, a hearing officer heard his case and determined Coffer should be terminated. In September of that year, the board of police commissioners affirmed the hearing officer's decision. Coffer appealed the board's decision to the circuit court, which, in October 2006, reversed the board's decision and ordered it to reinstate Coffer. On November 2, 2006, the board filed a Rule 75.01 motion (for the circuit court to clarify and reconsider). On November 22, 2006, the trial court entered an unsigned docket entry, entering judgment for Coffer. The board appeals.

Coffer argues the board's appeal should be dismissed for lack of appellate jurisdiction. He contends the board's appeal was improperly filed more than 10 days after the circuit court's judgment became final because the judgment was filed when the judge signed the judgment, not when a docket entry was made several weeks later. He argues the board's September 2005 decision was arbitrary, capricious and unreasonable and was an abuse of discretion. Coffer contends that the overwhelming weight of the evidence demonstrates he was not guilty of violating police policy and that the board's expert testified his conduct was subjectively reasonable. He further argues the police policies are not self-proving and the police department did not introduce evidence of any violation of the policies to the board. Coffer asserts the board was not entitled to deprive him of his governmental employment because the board's decision to offer and advocate the use of a hearing officer procedure, pursuant to Resolution 02-06, failed to provide Coffer with the statutorily mandated public hearing before the board. He asserts the use of the hearing officer procedure was a sham that deprived him of his statutory and procedural due process rights.

The board responds its January 2007 notice of appeal was timely in that the circuit court's judgment was entered in October 2006, and the board's post-judgment motion, filed November 2006, was never ruled by the circuit court. It contends it did not err in terminating Coffer because its decision was supported by competent and substantial evidence based on the whole record including a videotape of the incident showing Coffer struck an unresisting arrestee while using profanity and spitting on him. The board further argues it had jurisdiction to allow Coffer to decide to have his case heard first by a hearing officer instead of the board and it was not bound to accept the hearing officer's recommendation.

SC89576
Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting, Inc.
Jefferson County
Personal property and loss of use damages
Listen to the oral argument:

Jokerst was represented during argument by Bianca Eden of Wegmann, Stewart, Dieffenbach, Tesreau, Sherman & Eden, P.C., of Hillsboro, Mo.; and Gateway was represented by Mark Kragel of Troy, Mo.

In November 2002, Jokerst Paving & Contracting employee, driving a Jokerst vehicle, struck a Gateway Foam Insulators work truck, driven by Gateway's owner and another employee. Jokerst's vehicle struck Gateway's primary foam rig, resulting in a spill of hazardous chemicals. In July 2007, the trial court awarded more than $212,900 in damages to Gateway broken down as $68,500 for the foam rig truck and equipment and supplies thereon, more than $11,700 in interest on the loan used to replace the truck, more than $12,700 for the cost of the environment cleanup and $120,000 in lost profits. Jokerst appeals.

Jokerst argues that Gateway could not recover for loss of use of the foam rig and lost profits because loss of use is only available for recovery for damage to personal property if the property is repaired. The vehicle was replaced not repaired. It contends the trial court erred in awarding Gateway $120,000 in lost profits in that damage for loss of use of personal property is limited to the time reasonably required to repair the property. Jokerst contends the vehicle could have been replaced in two or three weeks and Gateway did not replace it for almost two years. Jokerst asserts the there was no substantial evidence to support Gateway's award for lost profits, because the testimony that Gateway's revenue would increase was mere speculation and not competent as to anticipated profits. It further argues that interest on the loan encompassed replacement costs and is a double recovery in that damages on personal property are measured by diminution in value. Jokerst contends that Gateway should not be awarded interested on the loan for the replacement vehicle or for cleanup costs because these are special damages that are required to be pleaded and proven to be reasonable and necessary. He asserts the invoice of environmental restoration was not a business record of Gateway and was not admissible. He asserts no evidence of fair market value of the property prior to the accident or subsequent to the accident was introduced; therefore, there was insufficient evidence of the diminution in value of the vehicle, equipment and supplies.

Gateway responds the trial court properly awarded its lost profit damages. It contends it presented overwhelming evidence of its lost profits and its damages are recoverable pursuant to Orr v. Williams, 379 S.W.2d 181 (Mo. App. 1964), because that case provided for lost of use damages where the defendant causes a delay in repairs. It argues Jokerst fails to consider the fundamental split in Missouri law regarding loss of use damages and the general trend in surrounding states' supreme court decisions, this Court's remand of Ameristar Jet Charter, Inc. v. Dodson Int'l. Parts, Inc., 155 S.W.3d 50 (Mo. banc 2005), and the general public policy supporting the trial court's damages judgment. Gateway asserts the trial court has broad discretion in admitting and evaluating the evidence presented at trial and properly applied the law in awarding cleanup costs. It further responds its evidence established the foam rig's diminution in value.

SC89571
John C. Middleton, et al. v. Missouri Department of Corrections, et al.
Cole County
Application of administrative procedure act to lethal injection protocol
Listen to the oral argument:

Middleton was represented during argument by Joseph Luby of the Public Interest Litigation Clinic in Kansas City, and the state was represented by Michael Spillane of the attorney general's office in Jefferson City.

Missouri executions are by lethal injections or lethal gas and must be carried out through an "execution protocol" developed by the Missouri Department of Corrections. The protocol was prepared by the department in July 2006 in part in response to federal litigation over Missouri's execution method. In July 2008, John Middleton and 16 other Missouri inmates sentenced to death, five relatives of the inmates, three members of the clergy, and two members of the Missouri legislature (collectively "Middleton") filed a lawsuit challenging the execution protocol, arguing the department did not promulgate its execution protocol through the state's administrative procedure act. They argued the protocol is a rule under the act and should have been promulgated as an administrative regulation pursuant to sections 536.010(6) and 536.021, RSMo, which provide that, when the department issues rules of general application, it is required to file a notice of the proposed rulemaking with the secretary of state for publication in the Missouri Register, invite public comment for or against the proposal, publish a "final order of rulemaking," explain why it either followed or rejected comments made by the public, and submit the proposed and final rule to the joint committee on administrative rules, through which the legislature has an "effective opportunity" to be advised of the regulations being proposed. In August 2008, the circuit court dismissed the lawsuit for lack of jurisdiction, holding the protocol was exempt from the act's definition of a rule because it was a matter of "internal management" pursuant to an exception in section 536.010. It determined the protocol instead is an agency statement "concerning only inmates of an institution under the control of the department of corrections." Middleton appeals.

Middleton argues the circuit court erred in exempting the department's protocol from the act under the act's "internal management" exception. He contends the court impermissibly broadened the exception and applied it because of the court's view that the protocol does not affect any specific rights of the public. Middleton asserts the protocol extends beyond the department's "internal management" by relying on outside medical personnel for its implementation (given that non-department medical professionals aid in carrying out the lethal injections), by affecting outside parties witnessing the injection pursuant to the protocol, and by deciding for all Missourians the politically and legally salient issue of how the state will carry out executions. He further argues the circuit court failed to give effect to all words of the statute because the protocol concerns and affects individuals beyond the prisoners against whom it will be enforced, including non-department parties who will carry out and witness executions. In his supplemental brief, Middleton argues intervening authority, including decisions in California, Delaware and Virginia, strongly supports his position that the legal injection protocol is subject to the administrative procedure act. He contends the state's newly-asserted statutory arguments are untimely and without merit in that section 217.040.2, RSMo, does not exempt the lethal injection protocol, which is not a directive "concerning only [the department of corrections'] internal management."

The state responds the injection protocol is not a rule that must be promulgated under the act. It asserts that whether the challenged policy was a "rule" under section 536.010(6) is a jurisdictional question and that the circuit court did not have jurisdiction to determine whether the department followed the notice and comment requirements for promulgating a rule under the act. The state contends the court lacked jurisdiction because the injection protocol is not a "rule" pursuant to section 536.010(6) because it does not have an impact on the substantive or procedural rights of the public, it concerns only the internal management of the department, and it is directed only to inmates. In its supplemental brief, the state responds sections 214.040.2 and 217.040.3 explicitly exclude the department of corrections policies and procedures concerning only the department's internal management from the notice and comment requirements of chapter 536, RSMo.

The Missouri Press Association argues, as a friend of the Court, that the protocol is a rule. It contends that the openness of the process of selecting the execution method is an issue of broad public interest and that such a policy should not be relegated to the department's internal management policymaking.