Case Summary for October 8, 2013

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Case Summary for October 8, 2013

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. Tuesday, October 8, 2013

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SC93361
Melissa Coday v. Division of Employment Security
St. Louis County
Overpayment of unemployment benefits
Listen to the oral argument:

Coday was represented during arguments by Martin L. Perron of The Perron Law Firm PC in St. Louis, and the division was represented by Bart A. Matanic of the division in Jefferson City.

Melissa Coday worked full-time for the Sullivan Private Label Company and part-time for Design Design Inc. She was laid off from Sullivan and collected unemployment benefits through the division of employment security until she obtained a new job. Coday waiting a week to file for benefits, according to section 288.040.1(4), RSMo, which requires a “waiting week” for which the claimant may be reimbursed at a later date. While receiving benefits, Coday received commission checks from Design Design. When Coday filed weekly unemployment claims, she did not enter the commission as income. The division learned about the commissions, but due to a unique commission system, Design Design and Coday were unable to determine when she had earned the commissions and how many hours she worked each week. The division prorated the amounts for each day of the preceding month that Coday received a commission payment but later determined Coday had been ineligible for unemployment benefits all along and had been overpaid any benefits she received. The division reconsidered its determination twice, ultimately determining Coday had been overpaid $8,970. The appeals tribunal reversed the ineligibility determination, determined Coday was entitled to partial benefits and assessed a fraud penalty against Coday for the overpaid benefits. The labor and industrial relations commission affirmed the overpayment and penalty determinations. Coday appeals.

Coday argues the commission incorrectly determined that she had been overpaid and assessed a penalty against her. She contends there was insufficient evidence to determine that the money she received from Design Design was related to work she did during the previous month and, therefore, that unemployment benefits should be prorated based on the amount of work done each day. Coday asserts that, when someone is paid wages and it is uncertain when the work relating to those wages was performed, the wages should be attributed to the week in which the person is paid and it is unfair for the division to push the burden of proving when she earned the wages onto her. She argues there was insufficient evidence to prove that she willfully failed to disclose earnings or that she acted with intent to obtain benefits unlawfully. Coday contends she was unaware that she was required to report monthly commission payments each week and before receiving them. As such, she contends she could not have failed to report those wages intentionally, deliberately or willfully and could not have intentionally committed fraud by misrepresenting, misstating or failing to disclose material facts. She asserts the division erred in its determination that her appeal was not timely because the deputy’s determination was not a penalty assessment and was governed by a 30-day appeal period, which properly was extended for good cause because she acted reasonably and in good faith. Coday argues the division did not have jurisdiction because it made its reconsidered determination more than a year after the end of the benefit year. Coday asserts the penalty assessed against her was based on a prior penalty for the same matter that is under appeal. She argues she satisfied the requirements to receive a payment for her waiting week.

The division responds the commission correctly determined that Coday had been overpaid and assessed a penalty against her. It argues the burden of proof to obtain benefits always rests on the person filing the claim. The division contends wages and commissions are considered payable when they are earned, not when they are paid. It asserts that wages received on a monthly basis are required to be prorated. The division argues Coday’s conduct was willful. It contends there is no good cause exception for filing an appeal to a fraudulent overpayment and, even if there is an exception, Coday does not qualify. The division asserts the deputy’s redeterminations were timely and there is no one-year time limit for a redetermination based on fraud. It argues the penalty assessed was proper as a result of Coday’s conduct. The division concedes Coday may be entitled to her waiting week benefits depending on this Court’s decision on the remaining matters on appeal.

SC93407
David Spradling, Deceased, Employee, Lee Spradling, Brittinee Spradling, and Marinda Spradling v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund
Butler County
Right to deceased’s disability benefits
Listen to the oral argument:

The treasurer was represented during arguments by Jonathan J. Lintner of the attorney general's office in Cape Girardeau, and the Spradlings were represented by Sheila R. Blaylock of Little, Schellhammer, Richardson & Knowlan Law Offices PC in Poplar Bluff.

David Spradling was injured in the course and scope of his employment and filed a claim for workers’ compensation against his employer and the state treasurer as custodian of the second injury fund. Before the claim was decided, Spradling died of causes unrelated to his injury, and his children were substituted as claimants in the case. The administrative law judge found Spradling was entitled to permanent total disability benefits and awarded his children the benefits in equal shares continuing for their lifetimes. The labor and industrial relations commission upheld the award. The treasurer appeals.

The treasurer argues the commission incorrectly awarded Spradling’s disability benefits to his children for their lifetimes. He contends any benefits they receive should terminate when the children reach the age of majority. The treasurer asserts the only exception is for special circumstances that do not apply here. He argues the commission’s decision ignored the statutes and case law establishing that a dependent is not entitled to disability benefits indefinitely.

The children respond the commission correctly awarded them the disability benefits indefinitely. They argue the termination clause for disability benefits applies to specific injury-related death benefits, not permanent total disability compensation. The children contend they were Spradling’s dependents at the time of his work injury. They assert Spradling was found to be permanently and totally disabled and was awarded compensation from the second injury fund for the remainder of his life. The children argue that, upon Spradling’s death, they stepped into his shoes and were entitled to the lifetime award of disability benefits.

SC93084
State of Missouri v. Dennis Blankenship
St. Louis County
Challenge to conviction for attempted use of child in sexual performance
Listen to the oral argument:

Blankenship was represented during arguments by Kim C. Freter, an attorney in Clayton, and the state was represented by Jennifer A. Rodewald of the attorney general's office in Jefferson City.

Dennis Blankenship was convicted of attempting to use a child in a sexual performance for electronic messages exchanged between himself and a police officer posing as his 16-year-old niece. Blankenship contacted his niece to ask if she wanted to play a truth–and-dare game, which made her uncomfortable, so she reported it to her mother. They notified police, who stepped into her shoes and continued conversations with Blankenship. Blankenship exchanged several messages with the officer posing as his niece, often directing her to do certain actions. He was charged under section 568.080, RSMo, which establishes that an individual commits the crime of using a child in a sexual performance if they induce someone less than 17 years of age to engage in sexual performance. After his conviction, Blankenship filed a motion for judgment of acquittal, which the circuit court overruled. Blankenship appeals.

Blankenship argues the circuit court erred in finding that he attempted to use a child in a sexual performance and in overruling his objection that section 568.080,violated his rights to free speech. He contends his conversation with a police officer posing as a 16-year-old did not contemplate or constitute a criminal act and should be considered protected speech. Blankenship asserts that his messages were mere fantasy speech and that the state failed to prove the speech restriction was constitutional. He also argues the court’s failure to determine that his right to free speech was violated in turn violated his rights to due process and a fair trial. Blankenship contends the message did not meet the definition of a performance because it was not before an audience. He asserts the conduct was mere speech and did not violate section 568.080. Blankenship argues the state provided insufficient evidence to find beyond a reasonable doubt that he took a substantial step toward the commission of the crime. He contends the court erred in overruling his motion for judgment of acquittal.

The state responds the circuit court correctly overruled Blankenship’s objection and correctly found that he attempted to use a child in a sexual performance. It argues section 568.080 is not unconstitutional as applied to Blankenship because his speech was not protected as it was integral to his criminal conduct. The state contends it presented sufficient evidence to prove Blankenship took a substantial step toward committing the crime of using a child in a sexual performance. It asserts Blankenship asked someone he believed to be his niece to engage in sexual conduct through his messages. The state argues the circuit court correctly overruled Blankenship’s motion for judgment of acquittal.

SC93238
Karen M. Brown v. Anthony T. Brown and Christine Miller Hendrix, Guardian ad Litem
St. Charles County
Challenge to order to pay guardian ad litem’s attorney fees
Listen to the oral argument:

Brown was represented during arguments by Alan G. Kimbrell, an attorney in Wildwood, and the guardian ad litem was represented by Benicia A. Baker-Livorsi of The Family Law Group LLC in St. Charles.

Anthony and Karen Brown sought dissolution of their marriage and a custody determination for their six children in the state of Texas. The mother then moved to Missouri. The St. Charles County circuit court appointed an attorney to serve as the guardian ad litem to represent the best interests of the children. Following the custody determination, the circuit court ordered the parents to pay the guardian ad litem’s fees. The father appeals the circuit court’s custody determination, the guardian ad litem’s recommendations for custody and the assessment of the guardian ad litem’s fees.

The father argues the trial court erred in ordering him to pay a portion of guardian ad litem’s fees accrued on appeal. He contends the guardian ad litem does not have standing to assert the rights of the children to support her claim for fees. The father asserts the guardian ad litem did not preserve properly the issues challenging the decision for appeal. He argues there is no authority for a guardian ad litem in a custody proceeding to participate in an appeal from a decision of that court. Father contends that a guardian ad litem should have to obtain authorization from a court before participating in a proceeding.

The guardian ad litem responds the trial court correctly ordered the father to pay a portion of her fees. She argues a trial court is empowered by chapter 507, RSMo, to award fees for a guardian ad litem after a final judgment. The guardian ad litem contends there is no provision under the uniform child custody jurisdiction enforcement act that terminates a guardian ad litem’s powers at the final judgment. She asserts that barring a guardian ad litem from an appeal conflicts with the law stating all laws should be construed to protect the best interests of the child. The guardian ad litem also argues that barring a guardian ad litem violates a child’s rights to due process and equal protection. She contends that the father did not object to her participating in the appeal until he submitted his opening brief. The guardian ad litem asserts that the mother has not objected to the order to pay the fees and that the father does not have standing to represent the mother. The guardian ad litem argues that she produced evidence of her billing and that the determination of whether the fees are reasonable should be left to the jury.