Supreme Court of Missouri
en banc

August 26, 2003

OPINION BY STITH, J.
SC84454	State ex rel. Christopher Simmons, Petitioner, vs. Donald P. Roper, Superintendent, Potosi Correctional Center, Respondent.
	SENTENCE OF DEATH SET ASIDE RESENTENCED TO LIFE IMPRISONMENT WITHOUT ELIGIBILITY FOR PROBATION, PAROLE OR RELEASE EXCEPT BY ACT OF THE GOVERNOR. White, C.J., Wolff and Teitelman, JJ., concur; Wolff, J., also files separate concurring opinion; Price, J., dissents in separate opinion filed; Benton and Limbaugh, JJ., concur in opinion of Price, J.

OPINION BY STITH, J.
SC84648	State of Missouri, Respondent, vs. Kimber Edwards, Appellant.
	AFFIRMED. White, C.J., Wolff, Benton, Price and Limbaugh, JJ., concur; Teitelman, J., concurs in separate opinion filed.

PER CURIAM
SC85024	Dunn Industrial Group, Inc., Dunn Industries, Inc., Respondents, vs. City of Sugar Creek, Missouri, et al., Defendants, LaFarge Corporation, et al., Appellants.
	AFFIRMED IN PART; REVERSED IN PART; DISMISSED AS MOOT IN PART; REMANDED. All concur.

MOTIONS FOR REHEARING
SC84807	Thomas E. Bauer, Respondent, vs. Transitional School District of the City of St. Louis, Defendant, The Board of Education of the City of St. Louis, et al., Appellants.
	Respondent's motion for rehearing overruled. Wolff and Teitelman, JJ., not participating.

SC84452	State of Missouri, Respondent, vs. Cecil Barriner, Appellant.
	Respondent's motion for rehearing or, in the alternative, modification of opinion overruled. Opinion modified on Court's own motion.

SC84956	Eighty Hundred Clayton Corporation, d/b/a Tropicana Lanes, Respondent, vs. Director of Revenue, Appellant.
	Respondent's motion for rehearing overruled.

APPLICATIONS FOR TRANSFER AND RECOMMENDATIONS FOR TRANSFER
SC85363	Suzanne L.H. Murray, Appellant, vs. T & R Enterprises of Missouri and Millennium Management Corporation, Respondents.
	Appellant's application for transfer from the Missouri Court of Appeals, No. SD25095, denied.

SC85315	John E. Belton, Appellant, vs. Steven E. Moore, et al., Respondents.
	Appellant's application for transfer from the Missouri Court of Appeals, No. WD61488, denied.

SC85366	Edwin Beasley, Appellant, vs. Sells Rest Home, Inc., and Missouri Division of Employment Security, Respondents.
	Appellant's application for transfer from the Missouri Court of Appeals, No. SD25532, denied.

SC85367	B.R.M., L.S.M., S.M.R.K., and T.M.J.M., Minors. M.M., Appellant, vs. State of Missouri, Greene County Juvenile Office, Respondent.
	Appellant's application for transfer from the Missouri Court of Appeals, Nos. SD25124, SD25125, SD25127, and SD25129, denied.

SC85368	Tommy Lee Jordan, Appellant, vs. State of Missouri, Respondent.
	Appellant's application for transfer from the Missouri Court of Appeals, No. SD25114, denied.

SC85370	Janis Maynard, Appellant, vs. Lester E. Cox Medical Center/Oxford Healthcare, Respondent.
	Respondent's application for transfer from the Missouri Court of Appeals, No. SD25112, denied.

SC85371	Richard Ruestman, Respondent, vs. Dorothy Ruestman, Personal Representative of the Estate of Walter F. Ruestman, Appellant.
	Respondent's application for transfer from the Missouri Court of Appeals, No. SD25022, denied.

SC85373	James Quinn and Diana Quinn, Appellants, vs. Clayco Construction Co., Inc., Eric Hill, and Richard Gregory, Respondents.
	Appellants' application for transfer from the Missouri Court of Appeals, No. ED81318, denied.

SC85374	Christopher D. Price, Appellant, vs. Susan M. Price, Respondent.
	Appellant's application for transfer from the Missouri Court of Appeals, No. ED80900, denied.

SC85375	Tina Renee Rice, Respondent, vs. Earl Garnier Rice, Jr., Appellant.
	Appellant's application for transfer from the Missouri Court of Appeals, No. ED80921, denied.

SC85379	Matthew John Redlinger, III, Appellant, vs. Jeanne Maria Redlinger, Respondent.
	Appellant's application for transfer from the Missouri Court of Appeals, No. ED81222, denied.

SC85382	Dennis Brown, Appellant, vs. Kenneth L. Roberson, Respondent.
	Appellant's application for transfer from the Missouri Court of Appeals, No. ED81952, denied.

SC85383	Chester Bross Construction Company, Appellant, vs. Missouri Department of Labor and Industrial Relations, Division of Labor Standards, Respondent.
	Appellant's application for transfer from the Missouri Court of Appeals, No. ED81440, denied.

SC85391	Nicholson Construction Company, Appellant, vs. Missouri Highway and Transportation Commission, Respondent.
	Appellant's application for transfer from the Missouri Court of Appeals, Nos. WD61878 and WD62025, denied.

SC85392	Eric Krugh and Joseph Krugh, Appellants, vs. Don Hannah, Lake Ozark Construction Industries, Defendant, and Millstone Marina Service, L.L.C., Respondent.
	Respondent's application for transfer from the Missouri Court of Appeals, No. WD61035, sustained and cause ordered transferred.

SC85400	State of Missouri, Respondent, vs. Adrian Blanton, Appellant.
	Appellant's application for transfer from the Missouri Court of Appeals, No. ED81773, denied.

SC85401	State of Missouri, Respondent, vs. Carl Pearson, Appellant.
	Appellant's application for transfer from the Missouri Court of Appeals, No. ED81424, denied.

SC85402	Floyd O. Lieurance, Appellant, vs. Helen M. Lieurance, Respondent.
	Appellant's application for transfer from the Missouri Court of Appeals, No. ED80771, denied.

SC85406	State of Missouri, Respondent, vs. Kevin R. O'Connell, Appellant.
	Appellant's application for transfer from the Missouri Court of Appeals, No. WD61225, denied.

SC85407	Envirotech, Inc., et al., Appellants, vs. Gateway Hotel Partners, L.L.C., et al., Respondents.
	Appellants' application for transfer from the Missouri Court of Appeals, No. ED81543, denied.

SC85409	In the Estate of: Paul A. Gianella, Deceased.
	Appellant's application for transfer from the Missouri Court of Appeals, No. ED81189, denied.

SC85411	James A. Carter, Appellant, vs. State of Missouri, Respondent.
	Appellant's application for transfer from the Missouri Court of Appeals, No. SD24934, denied.

SC85414	State of Missouri, Appellant, vs. Anthony Gratts, Respondent.
	Respondent's application for transfer from the Missouri Court of Appeals, No. WD60794, denied.

SC85415	State of Missouri, Respondent, vs. Patrick J. Williams, Appellant.
	Appellant's application for transfer from the Missouri Court of Appeals, No. WD60754, denied.

SC85416	State of Missouri, Respondent, vs. Montea D. Mitchell, Appellant.
	Appellant's application for transfer from the Missouri Court of Appeals, No. WD60870, denied.

SC85417	State of Missouri, Respondent, vs. Arthur S. Thompson, Appellant.
	Respondent's application for transfer from the Missouri Court of Appeals, No. WD59840, denied.

SC85418	Tamara Dee Leonard, Plaintiff, Alan and Donna Leonard, Appellants, vs. Christopher and Christy Leonard, Respondents, Firstar Bank, N.A., Appellant.
	Respondents' application for transfer from the Missouri Court of Appeals, Nos. WD61298 and WD61299, denied. Benton, J., not participating.

SC85420	John Carl Sanders, Jr., Appellant, vs. State of Missouri, Respondent.
	Appellant's application for transfer from the Missouri Court of Appeals, No. WD61011, denied.

SC85421	Shelly Y. Sims, Appellant, vs. The Burlington Northern and Santa Fe Railway Company, Respondent.
	Respondent's application for transfer from the Missouri Court of Appeals, No. ED81666, denied.

SC85422	Jonathan D. Coleman and Kathleen Coleman, Appellants, vs. Farmers & Merchants Bank of St. Clair, Respondent.
	Appellants' application for transfer from the Missouri Court of Appeals, No. ED81774, denied.

SC85424	Melvin Leroy Tyler, Appellant, vs. State of Missouri, Respondent.
	Appellant's application for transfer from the Missouri Court of Appeals, No. ED81129, denied. Appellant's motion to remand overruled.

SC85427	Emery F. Saladin, et al., Respondents/Cross-Appellants, and Gary G. Wagner, et al., Respondents, vs. James Jennings, et al., Appellants.
	Appellants' application for transfer from the Missouri Court of Appeals, Nos. ED81263 and ED81326, denied.

SC85429	In the Interest of K.G.M., N.J.M., and G.R.M., Jr. G.R.M., Appellant, vs. Greene County Juvenile Office, Respondent.
	Appellant's application for transfer from the Missouri Court of Appeals, No. SD25148, denied.

SC85430	Hazel Peckels, Independent Executor/Personal Representative of the Estate of Michael Peckels, Deceased, and Hazel Peckels, Individually, Respondents, vs. Wyatt Farms, Inc., Appellant.
	Appellant's application for transfer from the Missouri Court of Appeals, No. WD60877, denied.

SC85431	Melvin M. Fields, Christine Wardlow, Respondents, vs. Norbert Henrich, Sharon Henrich, Appellants.
	Appellants' application for transfer from the Missouri Court of Appeals, No. WD60976, denied.

SC85433	City of Independence, Missouri, Respondent, vs. Elwyn Cady, Jr., Appellant.
	Appellant's application for transfer from the Missouri Court of Appeals, No. WD61310, denied.

SC85434	State of Missouri, Respondent, vs. Ronnie Carl Robinson, Appellant.
	Respondent's application for transfer from the Missouri Court of Appeals, No. SD25131, denied.

SC85435	State of Missouri, ex rel. Sprint Spectrum L.P., d/b/a Sprint PCS, State of Missouri, ex rel. Southwestern Bell Wireless L.L.C., State of Missouri, ex rel. Cellco Partnership, Cybertel Cellular Telephone Company, d/b/a Verizon Wireless, State of Missouri, ex rel. AT & T Wireless Services, Inc., Appellants, vs. The Missouri Public Service Commission, Respondent, Southwestern Bell Telephone, Intervenor, Office of Public Counsel, Small Telephone Company Group, Missouri Independent Telephone Company Group, Respondents.
	Appellants' application for transfer from the Missouri Court of Appeals, No. WD60928 Consolidated with WD60929, WD60942, and WD61070, denied. Price, J., not participating.

SC85437	Mark Galazin, Appellant, vs. State of Missouri, Respondent.
	Appellant's application for transfer from the Missouri Court of Appeals, No. WD61765, denied.

SC85439	City of Lee's Summit, Appellant, vs. R and R Equities, LLC, et al., Defendants, and Carl Huff and Althea Huff, Respondents.
	Respondents' application for transfer from the Missouri Court of Appeals, No. WD61206, denied.

SC85440	John F. Mika, et al., Appellants, vs. Central Bank of Kansas City, et al., Respondents.
	Respondent Central Bank of Kansas City's application for transfer from the Missouri Court of Appeals, No. WD61116, denied.

SC85441	Alice Pollock, Appellant, vs. Berlin-Wheeler, Inc., Respondent.
	Appellant's application for transfer from the Missouri Court of Appeals, No. WD60568, denied.

SC85442	American Standard Insurance Company of Wisconsin, Respondent, vs. Larry D. Bittick, Appellant.
	Appellant's application for transfer from the Missouri Court of Appeals, No. WD61784, denied without prejudice pursuant to Rule 81.07.

SC85444	Celia Stowe and Donald Stowe, Appellants, vs. Kingdom House, Respondent, Jim May, Defendant.
	Appellants' application for transfer from the Missouri Court of Appeals, No. ED81914, denied.

SC85447	City of Webster Groves, Respondent, vs. Elizabeth B. Kellett, Appellant.
	Appellant's application for transfer from the Missouri Court of Appeals, No. ED81649, denied.

SC85448	Rubin Weeks, Appellant, vs. State of Missouri, Respondent.
	Appellant's application for transfer from the Missouri Court of Appeals, No. ED81171, sustained and cause ordered transferred. Limbaugh, J., not participating.

SC85449	In the Interest of B.S.L.
	Appellant's application for transfer from the Missouri Court of Appeals, No. ED81428, sustained and cause ordered transferred.

SC85450	Ladue Group, L.C., Respondent, vs. Level 3 Communications, L.L.C., Appellant.
	Appellant's application for transfer from the Missouri Court of Appeals, No. ED81262, denied.

SC85456	Larry Hampton, Respondent, vs. Big Boy Steel Erection, Appellant, and Liberty Mutual Insurance Company, Insurer, and Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Additional Party.
	Appellants' application for transfer from the Missouri Court of Appeals, No. ED81712, sustained and cause ordered transferred.

SC85457	Nicholas G. Pelligreen and Amy L. Pelligreen, Respondents, vs. Herman Wood, et al., Appellants.
	Respondents' application for transfer from the Missouri Court of Appeals, No. ED81093, denied.

SC85458	Randy Drennen and Patricia Ferguson, Appellants, vs. Farmers Bank, Inc., Respondent.
	Appellant Patricia Ferguson's application for transfer from the Missouri Court of Appeals, No. ED80850, denied.

SC85460	Kenneth L. Kubley, Appellant/Cross-Respondent, vs. Molly M. Brooks, Respondent/Cross-Appellant, and Director of the Division of Child Support Enforcement, Department of Social Services, Cross-Appellant.
	Respondent/Cross-Appellant's application for transfer from the Missouri Court of Appeals, Nos. SD24829, SD24836, and SD24840, sustained and cause ordered transferred.

SC85461	Brenda Richter and Rodney Richter, Respondents, vs. Linda Kirkwood, Appellant.
	Appellant's application for transfer from the Missouri Court of Appeals, No. SD25002, denied.

SC85462	Eugene Jones, Jr., Appellant, vs. State of Missouri, Respondent.
	Appellant's application for transfer from the Missouri Court of Appeals, No. ED80565, denied.

SC85466	ATS, Inc. and Liberty Mutual Insurance Company, Appellants, vs. Kenneth Listenberger, Respondent.
	Appellants' application for transfer from the Missouri Court of Appeals, No. ED81955, denied.

SC85468	Warren Davis Properties V, L.L.C., Respondent, vs. United Fire & Casualty Company, Appellant.
	Appellant's application for transfer from the Missouri Court of Appeals, No. SD24898, denied.

SC85474	State of Missouri, Respondent, vs. Joseph V. Grubb, Appellant.
	Appellant's application for transfer from the Missouri Court of Appeals, No. WD61528, denied.

SC85478	Lonnie Snelling, Appellant, vs. Apostle Demolition, Wrecking and Excavating, et al., Respondents.
	Appellant's application for transfer from the Missouri Court of Appeals, No. ED81847, denied.

SC85480	Charles M. Moore, Respondent, vs. Melanie D. Moore, Appellant.
	Appellant's application for transfer from the Missouri Court of Appeals, No. SD24650, denied. Limbaugh, J., not participating.

SC85481	State of Missouri, Respondent, vs. Richard Mozee, Appellant.
	Respondent's application for transfer from the Missouri Court of Appeals, No. WD61663, denied.

SC85483	In re the Marriage of: Kaye A. Mullins McKenzie, Respondent, vs. John K. McKenzie, Appellant.
	Appellant's application for transfer from the Missouri Court of Appeals, No. ED81495, denied.

SC85486	In the Interest of: E.K.M. and L.K.M. L.K.M., Appellant, and J.D.M., Appellant, vs. Audrain County Juvenile Office, Respondent.
	Appellant L.K.M.'s application for transfer from the Missouri Court of Appeals, Nos. ED81572 and ED81579, denied. Appellant J.D.M.'s application for transfer from the Missouri Court of Appeals, Nos. ED81572 and ED81579, denied.

SC85487	Jerome S. Stein, Appellant, vs. Pierre L. LaBarge, Jr., and LaBarge, Inc., Respondents.
	Appellant's application for transfer from the Missouri Court of Appeals, No. ED81593, denied.

SC85490	State of Missouri, Respondent, vs. Lamon E. Clark, Appellant.
	Appellant's application for transfer from the Missouri Court of Appeals, No. WD59672, denied.

SC85319	State ex rel. Andrew Lyons, Petitioner, vs. Donald Roper, Respondent.
	Petition for writ of habeas corpus denied. Petitioner's request for hearing overruled as moot.

SC85328	State ex rel. Frederick Spencer, Relator, vs. Larry Rowley, Superintendent, Missouri Eastern Correctional Center, Respondent.
	Petition for writ of habeas corpus denied. Relator's motion for discovery overruled as moot. Relator's motion for summary judgment overruled as moot.

SC85381	State ex rel. Richard L. Sapp, Petitioner, vs. Missouri Department of Corrections, Gary Kempker, Director, Respondent.
	Petition for writ of mandamus denied.

SC85389	State ex rel. Neal David Ricker, Petitioner, vs. James Anthony Gammon, Respondent.
	Petition for writ of habeas corpus denied. Petitioner's motion for exclusion of Supreme Court Rule 84.06(2) overruled as moot. Petitioner's motion for appointment of counsel overruled as moot. Petitioner's motion for release on recognizance bond overruled as moot. Petition for writ of habeas corpus ad testificandum overruled as moot. Petitioner's motion for summary judgment overruled as moot.

SC85394	State ex rel. James Roy Hill, Petitioner, vs. Denis Agniel, Chairman, Missouri Board of Probation & Parole, and Jim Moore, Superintendent, Northeast Correctional Center, Respondents.
	Petition for writ of habeas corpus denied. Petitioner's motion for appointment of counsel overruled as moot.

SC85403	State ex rel. L. David Ormerod, M.D., Relator, vs. The Honorable Gene Hamilton, Presiding Judge, Circuit Court of Boone County, Respondent.
	Petition for writ of mandamus sustained. Alternative writ ordered to issue returnable to Court en Banc in thirty days. Relator's motion to substitute party as to Respondent Judge named in petition for writ of prohibition or in the alterative for writ of mandamus sustained.

SC85404	State ex rel. Gary W. Engel, Petitioner, vs. Dave Dormire, Respondent.
	Petition for writ of habeas corpus denied.

SC85378	State ex rel. Willie Stevenson, Petitioner, vs. State of Missouri and Don Roper, Respondents.
	Petition for writ of habeas corpus denied. Petitioner's motion for writ of habeas corpus ad testificandum overruled as moot.

SC85412	State ex rel. LaFaun Hoggard, Relator, vs. The Honorable Thomas J. Frawley, Judge, Division 30, Circuit Court of City of St. Louis, Missouri, Respondent.
	Petition for writ of prohibition denied.

SC85423	State ex rel. Marion S. Harger, Jr., Relator, vs. Larry Rowley, Respondent.
	Petition for writ of habeas corpus denied.

SC85376	State ex rel. Lloyd E. Fisher, Petitioner, vs. James A. Gammon, Respondent.
	Petition for writ of habeas corpus denied. Limbaugh, J., not participating.

SC85425	State ex rel. Mark Richard Kilmartin, Petitioner, vs. James Anthony Gammon, Respondent.
	Petition for writ of habeas corpus denied. Petitioner's motion for appointment of counsel overruled as moot.

SC85390	State ex rel. John W. White, Petitioner, vs. State of Missouri, Respondent.
	Petition for writ of certiorari denied.

SC85377	State ex rel. Michael L. Pashos, Petitioner, vs. State of Missouri, Respondent.
	Petition for writ of certiorari denied.

SC85455	State ex rel. Lockwood Realty, Inc., and Kathleen Rorris, Relators, vs. The Honorable Steven R. Ohmer, Judge, Division 1, Circuit Court of the City of St. Louis, Respondent.
	Petition for writ of prohibition and/or mandamus denied.

SC85405	State ex rel. Lawrence Dale Spidle, Petitioner, vs. Steven E. Moore, et al., Respondents.
	Petition for writ of habeas corpus denied.

SC85426	State ex rel. Odell Blackmon, Petitioner, vs. Dave Dormire, Superintendent, Respondent.
	Petition for writ of habeas corpus denied.

SC85465	State ex rel. BJC Health System, Christian Hospital Northeast-Northwest, Eric Bethel, Vicky Aubuchon, Relators, vs. The Honorable Michael P. David, Judge, Circuit Court of the City of St. Louis, Missouri, Respondent.
	Petition for writ of mandamus and/or prohibition denied.

SC85388	State ex rel. Gregory W. Breeden, Petitioner, vs. Steward V. Epps, Respondent.
	Petition for writ of habeas corpus denied without prejudice pursuant to Rules 84.22 and 91.02(a). Petitioner's motion for immediate enforcement of Rule 91.18 overruled as moot. Petitioner's motion for immediate issuance of writ of habeas corpus in the interest of constitutional enforcement of Missouri Supreme Court Rules of Civil Procedure 91.18 and 91.06 overruled as moot.

SC85469	State ex rel. Keith Box, Petitioner, vs. Mike Kemna and the Attorney General of Missouri, Respondents.
	Petition for writ of habeas corpus denied.

SC85470	State ex rel. Scott E. Bryan, Petitioner, vs. The Honorable Calvin Holden, Judge, and Edith Nelson, Court Reporter, Respondents.
	Petition for writ of mandamus denied.

SC85467	State ex rel. BJC Health Systems, et al., Relators, vs. The Honorable Margaret M. Neill, Judge of the Circuit Court of St. Louis City, Division 1, Respondent.
	Petition for writ of prohibition sustained. Preliminary writ ordered to issue returnable to Court en Banc in thirty days.

SC85475	State ex rel. W. L. Gehrs, Jr., and Bette Jo Gehrs, Relators, vs. The Honorable James L. Eiffert, Respondent.
	Petition for writ of mandamus denied.

SC85453	State ex rel. Kenyatta Williams, Petitioner, vs. Gary B. Kempker, Respondent.
	Petition for writ of habeas corpus denied.

SC85445	State ex rel. Ira Souders, Petitioner, vs. Donna McCondichie, Superintendent, Respondent.
	Petition for writ of habeas corpus denied. Petitioner's motion for appointment of counsel overruled as moot.

MOTIONS
SC66734	State of Missouri, Respondent, vs. Charles Lee Mathenia, a/k/a Chuck Lee Mathenia, Appellant.
	Appellant's motion to recall the mandate, or in the alternative, petition for writ of habeas corpus overruled without prejudice.

SC69274	State of Missouri, Respondent, vs. Steven Wesley Parkus, Appellant.
	Appellant's motion to recall the mandate or, in the alternative, petition for writ of habeas corpus treated as a petition for writ of mandamus. Circuit Court of Washington County added as party Respondent. Alternative writ ordered to issue returnable to Court en Banc in thirty days.

SC85336	In re: Charles Finn Sheehan, Respondent.
	Respondent's motion to set aside order of default disbarment, leave to file answer out of time and request for hearing overruled. Respondent's motion for extension of time to comply with Rule 5.27 overruled.

SC85218	Orville Crouch, Respondent, J & J Home Builders, Inc., et al., Respondents, and American Family Mutual Insurance Company, Appellant.
	Appellant's motion to strike Respondent Orville Crouch's substitute brief overruled. White, C.J., not participating. Respondent Orville Crouch's motion to strike Appellant's substitute brief overruled. White, C.J., not participating.

SC85463	Douglas Sharp, et al., Respondents, vs. The Curators of the University of Missouri, Appellant.
	Respondents' motion to dismiss appeal sustained. White, C.J., and Price, J., not participating. Appellant's motion for oral argument overruled. White, C.J., and Price, J., not participating.

SC61432	State of Missouri, Respondent, vs. Robert Nathaniel Olds, Appellant.
	Appellant's "second" motion to recall the mandate overruled.

SC81748	State of Missouri, Respondent, vs. Leon Taylor, Appellant.
	Appellant's motion to recall the mandate overruled.

SC78086	State of Missouri, Respondent, vs. Leon V. Taylor, Appellant.
	Appellant's motion to recall the mandate overruled.

SC85352	State of Missouri ex rel. AG Processing, Inc., Appellant, vs. Public Service Commission of the State of Missouri, and Aquila, Inc., f/k/a UtiliCorp United, Inc., Respondents.
	Office of Public Counsel's motion to intervene as an unconditional party of right overruled. Price, J., not participating.

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