Case Summary for September 15, 2011

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Case Summary for September 15, 2011

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.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9 a.m. Thursday, September 15, 2011

____________________________________________________________________________________________________

SC91371
Craig A. Street v. Director of Revenue
Cole and Greene counties
Characterization of local tax on out-of-state purchase of boat, motor and trailer
Listen to the oral argument:

Street, an attorney from Springfield, represented himself during arguments, and the director was represented by State Solicitor James R. Layton of the attorney general's office in Jefferson City. Judge Joel May, a circuit judge from the 16th Judicial Circuit (Jackson County), sat in this case by special designation to fill the vacancy on the Court.

Greene County resident Craig Street bought a boat, outboard motor and trailer from a boat dealer in May 2009 in Maryland. He was at the seller’s place of business in Maryland at the time of the purchase, and after he completed the purchase and received the certificates of title, he transported the boat, motor and trailer from Maryland to his residence in Missouri. Later that month, Street applied for title and registration for all three to the Missouri Department of Revenue and paid the title and registration fees, Missouri use tax at a rate of 4.225 percent and about $191 in local sales taxes. At the time, Greene County did not have a use tax. He also sought from the department a refund pursuant to section 144.190, RSMo Supp. 2010, of all local taxes he paid on the boat, motor and trailer. He stated the purchase was not subject to local sales taxes in Missouri because he had bought the items in Maryland. In July 2009, the director of revenue denied Street’s refund request. He sought review in the administrative hearing commission, which determined that Street’s purchase of the boat, motor and trailer was subject to local sales tax under section 144.069, RSMo, and other revenue laws. Although the commission determined Street was not entitled to a refund of all local taxes he paid on the purchase, it determined the department applied the wrong rate on the outboard motor and found he was entitled to a refund of $41.25 for that overpayment. Street seeks review in this Court.

Street argues the commission misinterpreted and misapplied sections 32.087.12(2) and 144.069, RSMo, and, therefore, erred in ruling he is not entitled to a refund of all local sales tax paid in connection with his out-of-state purchase. He contends the legislature clearly expressed that a sales tax is a tax on sellers for the privilege of engaging in business in Missouri and is applicable to all retail sales in Missouri. He asserts that it is undisputed here that he bought the boat, outboard motor and trailer in Maryland from a Maryland retail seller. Street argues that, despite the legislature’s clear expression of intent, the commission construed sections 32.087.12(2) and 144.069 as authorizing the department to assess and collect local sales tax on behalf of Greene County on his out-of-state purchase.

The director responds that the commission’s decision should be affirmed because what the department imposed on Street was not really a “sales” or “use” tax but rather a motor vehicle tax imposed at the time of vehicle registration as a prerequisite to the title necessary to operate the boat, trailer and motor in Missouri. She argues that section 144.070, RSMo, imposes a tax on new and used motor vehicles, trailers, boats and outboard motors purchased or acquired for use on the highways or waters of Missouri and that section 144.440.4, RSMo, prohibits her from issuing such a title unless that tax has been paid. The director contends that local governments are permitted to impose local taxes that have the same coverage as state taxes and that she is authorized to collect such taxes on behalf of the local governments. Here, she responds, the tax that Greene County imposed is not a true “sales” tax but rather a motor vehicle tax imposed under section 144.440.1 and calculated from the purchase price of motor vehicles, boats, trailers and outboard motors. She asserts this local tax on motor vehicles is imposed where the owner resides rather than where the purchase is made pursuant to section 32.087.12(2).

SC91716
A.E.B., a minor by next friend, L.D., and L.D., individually v. T.B.
St. Charles County
Challenge to order granting child custody and relocation of one parent
Listen to the oral argument:
The mother was represented during arguments by Lawrence G. Gillespie of Gillespie Hetlage & Coughlin LLC in Clayton, and the father was represented by Joshua G. Knight of Knight & Tomich in St. Charles. Judge Joel May, a circuit judge from the 16th Judicial Circuit (Jackson County), sat in this case by special designation to fill the vacancy on the Court.

A child was born in March 2006 in St. Louis County. The mother and father were not living together at the time the mother became pregnant, and the child lived exclusively with her mother. The father lives in St. Charles County. In the spring of 2008, the mother moved to Ohio to be nearer her mother. In July 2008, the father filed his petition for declaration of paternity, order of support and custody, and change of name, and the mother was served with his petition. The next month, the mother filed her answer to the father’s petition and also filed her own petition for declaration of paternity and order of custody, support, medical insurance, necessaries and past support. The circuit court held a trial in November 2009 and in February 2010 issued its judgment, decree of paternity, and order for child support, visitation and temporary custody. In its judgment, the court designated the mother and father as the child’s joint legal custodians; granted the mother sole physical custody of the child; ordered the mother to relocate her residence from Ohio to St. Charles County, St. Louis County or Lincoln County in Missouri; and granted the father custody every other weekend, overnight on Wednesdays, half of each summer and a standard holiday schedule. The mother filed a motion for a new trial or, alternatively, a motion to amend, and the father filed a motion to reopen the evidence and amend the judgment. The court overruled both motions. Both parties appeal.

Mother’s appeal

The mother argues that the trial court misapplied the law and abused its discretion in requiring her to move from Ohio to within a three-county area in Missouri. She contends nothing in chapter 452, RSMo, requires a parent at the time of an initial custody determination to move from one state to another or to be restricted to living in a particular set of counties. She asserts that insofar as an initial custody determination takes into account any intention of either parent to relocate, the procedures of section 452.377 do not apply because this case is not a relocation case. The mother argues the trial court does not have the authority to undertake to create an ideal environment for the child by requiring her to move. She contends its order requiring her to move creates a greater burden on her, as the custodial parent, than on the father, as the non-custodial parent.

The father responds that the trial court properly required the mother to relocate from Ohio to a three-county area in Missouri. He contends this order was made pursuant to the mother’s request for relief, granted greater leniency regarding relocation than what the mother had requested and was based on the child’s best interests.

Father’s appeal

The father argues that the trial court erred in awarding the mother sole custody of the child. He contends this decision was unsupported by substantial evidence, misapplied the law and was an abuse of discretion. He asserts that the initial custody determination is made based on consideration of eight factors set out in section 452.375 and not based on who happens to have actual custody of the child from the time of separation until the time the court makes the custody determination. The father argues that, based on the court’s judgment, it is apparent that the court believed that the child’s best interests would be served by living in Missouri.

The mother responds that the trial court properly awarded her sole custody of the child. She argues this decision was supported by substantial evidence, was not a misapplication of the law and was not an abuse of discretion. She contends the “intention to relocate” language in section 452.375 does not apply here because she already had moved to Ohio. She asserts that there is no specific formula for how the trial court must weigh the statutory factors and that her own appeal cannot be considered as a reason to award sole physical custody to the father. The mother further responds that the court’s observations during its questioning of her cannot be a factor in this Court’s review.

SC91601
In re: Kwadwo Jones Armono
St. Louis
Attorney discipline
Listen to the oral argument:
The chief disciplinary counsel was represented during arguments by Sam S. Phillips of the chief disciplinary counsel's office in Jefferson City, and Armano, an attorney from St. Louis, represented himself. Judge Joel May, a circuit judge from the 16th Judicial Circuit (Jackson County), sat in this case by special designation to fill the vacancy on the Court.

In April 2010, the chief disciplinary counsel’s office received three notices from a bank, pursuant to Rule 4-1.15, that the client trust account of St. Louis attorney Kwadwo Jones Armano was overdrawn. Armano told the chief disciplinary counsel’s office that, the day before he wrote himself a check for $500, the bank told him that his trust account held nearly $7,175. He also wrote a check for $1,725 to a heating and cooling company for work on a house that Armano was rehabilitating for sale. This check bounced twice due to insufficient funds in the trust account. The chief disciplinary counsel’s office asked Armano for additional bank records and client records. The office’s subsequent audit revealed that, at the time he wrote the $500 check to himself that caused the initial overdraft, Armano routinely was using his trust account for personal banking. Checks written on that account from April through June 2010 primarily related to a home that Armano owned and was preparing for sale; he also wrote checks on the account for many thousands of dollars to himself. During this same time period, Armano was holding the funds of at least two clients in his trust account. He paid one of his clients and the hospital with whom the client had a case after he deposited the $195,000 in proceeds of the house sale into his trust account. Until he made that deposit, the trust account had been in a negative balance for about 10 days. For the other client, for whom he was holding funds in escrow for the client’s purchase of a car, Armano was able to replenish the funds by selling his house before the payments to the car seller came due. Armano stipulated that he commingled personal funds and client funds in violation of Rule 4-1.15(c) and that he failed to maintain adequate records in violation of Rule 4-1.15(d). He said he made the personal payments from his trust account with the belief that the funds in the trust account belonged to him and not his clients. The parties stipulate that a public reprimand is an appropriate sanction. The chief disciplinary counsel asks this Court to discipline Armano’s law license.

The chief disciplinary counsel asks this Court to publicly reprimand Armano’s law license. He argues Armano has admitted he violated Rule 4-1.15. He contends a public reprimand is appropriate under both the American Bar Association standards for imposing sanctions on lawyers and Missouri case law.

Armano agrees with the chief disciplinary counsel.