Case Summary for December 15, 2009

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Case Summary for December 15, 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.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9:30 a.m. Tuesday, December 15, 2009

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SC90181
Justin Wayne Akins v. Director of Revenue, State of Missouri
Jefferson County
Driver's license revocation for offenses related to driving while intoxicated
Listen to the oral argument:

Atkins was represented during argument by Kevin Roberts of Breeze, Roberts, Ponder-Bates, Wooten & Zimmer, LLC, of Hillsboro, and the state was represented by Solicitor General James Layton of the attorney general's office in Jefferson City.

In July 2006, Justin Akins was driving while intoxicated when he collided with another vehicle, injuring three people. He pleaded guilty to three counts of second-degree vehicular assault. In May 2008, the director of revenue notified Akins that his driver's license would be revoked for 10 years because he was convicted more than twice for offenses relating to driving while intoxicated pursuant to section 302.060(9), RSMo. Akins sought judicial review of the director's decision arguing there was a single accident and, therefore, the conviction should count as only one offense. The circuit court affirmed the director's 10-year denial. Akins appeals.

Akins argues all three charges of vehicular assault arose out of one act of driving while intoxicated and should only be considered one conviction. He asserts there is a conflict between Harper v. Director of Revenue, 118 S.W.3d 195 (Mo. App. 2003), and Clare v. Director of Revenue, 64 S.W.3d 877 (Mo. App. 2002), in determining the number of convictions arising out of accidents where a party is driving while intoxicated. Akins argues in Harper v. Director of Revenue, Stephen Harper pleaded guilty to five counts of second-degree assault arising out of one motor vehicle accident and had one single judgment resulting in one conviction. He contends in Clare v. Director of Revenue, Robert Clare pleaded guilty of four counts of second-degree assault arising out of one motor vehicle accident resulting in four convictions, and he was denied his license for 10-years pursuant to section 302.060(9).

The state responds the director received three separate electronic reports stating Akins was convicted of felony vehicular assault. It contends the reports list different ticket or arrest numbers and, therefore, on the face of the reports the circuit court deemed there to be three convictions. The state argues because section 302.060 is remedial in nature and is intended to protect the public, it must be liberally construed to effect its beneficiary purpose to accomplish the public good.

SC90222
State ex rel. Skylar M. Manion v. The Honorable R. Brent Elliott
Daviess County
Change of judge in probation violation
Listen to the oral argument:

Manion was represented during argument by Robert Sundell of Anderson & Sundell, P.C., of Maryville, and the state was represented by Jayne Woods of the attorney general's office in Jefferson City.

Skylar Manion pleaded guilty to three counts of arson and one count of second degree attempted arson in April 2006. He was 17-years old at the time. The circuit court suspended the imposition (if successfully completes probation, the conviction will not appear on public record) of Manion's sentence and placed him on probation for five years. The judge who placed him on probation subsequently retired. In September 2007 and December 2007, the prosecutor moved to revoke Manion's probation. A probation violation hearing was scheduled and continued. At a hearing in March 2008, the new judge sentenced Manion to imprisonment, but the judge suspended the execution of that sentence (if successfully completes probation, Manion avoids jail time, but the conviction is on his permanent record) and placed Manion on a new five-year term of probation. One year later Manion was arrested and, in April 2009, the prosecutor moved to revoke Manion's probation. A third judge was assigned to hear the case. Manion requested a change of judge. His motion was overruled for being filed too late. Manion seeks a writ prohibiting the circuit court from taking any action other than changing the judge hearing his probation revocation case.

Manion argues the circuit court does not have jurisdiction, or discretion, to take any action other than to change the judge. He concedes that if Rule 32.07, which governs criminal proceedings, is applicable, then his request was not timely. But, he asserts, probation revocation hearings are not criminal proceedings, and he made a timely request to change the judge pursuant to Rule 51.05.

The state responds Rule 51.05 is not applicable to probation violation proceedings because they are part of the underlying criminal conviction. It contends Manion was entitled to a change of judge pursuant to this Court's holding in State ex rel. Horton v. House, 646 S.W.2d 91 (Mo. banc 1983), but his motion was not filed in a timely manner.

SC90205
Donald L. Bryant, Jr. v. Smith Interior Design Group, Inc.
St. Louis County
Personal jurisdiction over Florida company
Listen to the oral argument:

Bryant was represented during argument by Liz Blackwell of Thompson Coburn, LLP, in St. Louis, and the company was represented by Paul Lane of Dowd & Dowd, P.C. in St. Louis.

Donald Bryant, a Missouri resident, contacted Smith Interior Design Group to work on his apartment in New York. The company is located in Florida, but traveled to Missouri to meet with Bryant to discuss their recommendations for his New York apartment. Bryant bought furniture and household items based on the company's recommendations, but when the invoices arrived for the items, Bryant challenged the commissions being paid to the company. In March 2008, Bryant sued the company in Missouri alleging fraudulent misrepresentation, fraudulent omission, negligent misrepresentation, unjust enrichment and violation of the Missouri consumer protection act. The company moved to dismiss for lack of personal jurisdiction. The circuit court determined it did not have personal jurisdiction over the company and dismissed the case. Bryant appeals.

Bryant argues the Missouri circuit court had personal jurisdiction over the company pursuant to Missouri's "long-arm statute." He contends the company made sufficient contacts with Missouri to justify the circuit court exercising personal jurisdiction over it in that the fraudulent communications the company had with Bryant occurred while Bryant was in Missouri and form the basis of the litigation.

The company responds Bryant failed to plead facts demonstrating it had sufficient contact within the state. It argues the long arm statute does not apply because Bryant's claims do not arise from business transactions in Missouri because the business relationship was based on Bryant's apartment in New York, Bryant solicited the company in Florida, the services were provided in New York and Florida, no goods were purchased in or delivered to Missouri and the actual installation and physical work was performed in New York.