Case Summary for March 1, 2005

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Case Summary for March 1, 2005

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 THE BRIEF(S) FILED BY THE PARTY OR PARTIES. THESE ELECTRONIC BRIEFS HAVE BEEN CONVERTED TO PDF BY THE COURT'S STAFF TO ACCOMMODATE VARIOUS WORD PROCESSORS. (If you do not already have the Acrobat reader, 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.) THE ATTACHMENTS MAY NOT REFLECT ALL BRIEFS FILED WITH THE COURT, THE COMPLETE ELECTRONIC FILING, OR THE FORMAT OF THE ORGINAL FILING. APPENDICES AND OTHER ATTACHMENTS GENERALLY WILL NOT BE POSTED HERE. (To determine whether or which briefs have been filed in a particular case, visit Case.net.) POSTING OF THE BRIEFS DOES NOT REFLECT ANY OPINION OF THE COURT ABOUT THE APPROPRIATENESS OF THE FORMAT OF THE BRIEFS OR THE MERITS OF A CASE. THESE POSTINGS ARE NOT OFFICIAL COURT RECORDS. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION.

DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

Tuesday, March 1, 2005
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SC86212
In re: James F. Crews
Miller County
Attorney discipline

Following a June 1993 automobile accident in which he was injured, Tom Hodge contacted Tipton, Missouri, attorney James Crews for advice. Hodge and his wife ultimately hired Crews on a contingency fee basis to determine whether they could sue the driver of the other car and that driver's employer, an automobile dealership. Crews hired an investigator to determine whether the other driver was on duty at the time of the collision. When the investigator did not find any helpful information, Crews did not pursue the matter further. The Hodges eventually learned that the other driver was on his way back to the dealership in a car he was to bring in for a safety inspection at the time of the collision. The Hodges gave this information to Crews. In May 1998, less than a week before the statute of limitations would have run, Crews filed a two-page petition against the driver and the dealership on the Hodges' behalf. In November 1999, the dealership moved for summary judgment on the grounds that its employee was on an unpaid lunch break at the time of the accident. Crews did not file a response to it and did not appear at the hearing regarding that motion. The court sustained the dealership's motion for summary judgment. In January 2000, Hodge called the circuit clerk's office to inquire about the status of his case and was told it had been dismissed. Hodge called Crews, who told him the court likely was confused about the case and that he would rectify the problem. Later that month, Crews filed a motion to set aside the judgment. In February 2000, the court overruled the motion, entering judgment for the dealership. In April 2000, Crews met with the Hodges and told them he would appeal the court's judgment. Hodge subsequently began suffering from headaches and stomachaches. He and his wife met with another attorney, who advised them they might need to sue Crews. In July 2000, Hodge died of natural causes. The next month, Crews appealed the case on behalf of Hodge's wife to the court of appeals, although his brief was stricken for failure to comply with the rules. He was given leave to amend his brief, but the second brief still was deficient, and, in September 2000, the court of appeals dismissed the appeal. The chief disciplinary counsel seeks to discipline Crews' license to practice law.

The chief disciplinary counsel argues this Court should disbar Crews. She contends he repeatedly misled the Hodges about the status of the case in violation of Rule 4-8.4(c). She asserts that he violated Rule 4-1.4 by failing to communicate material information to the Hodges, including that a dispositive motion was filed and granted against them. The chief disciplinary counsel argues Crews failed to represent the Hodges diligently in violation of Rule 4-1.3 by doing little to advance their case in four years, by not filing a responsive pleading and by not appearing for the hearing on the motion for summary judgment. She contends Crews' incompetent representation, in violation of Rule 4-1.1, resulted in both the entry of summary judgment against the Hodges and in the dismissal of their appeal. She asserts that Crews also failed to put the contingent fee agreement in writing in violation of Rule 4-1.5(c). The chief disciplinary counsel argues that disbarment is appropriate because of Crews' failure to acknowledge the wrongful nature of his conduct, the vulnerability of his victims, his 40 years' practice experience and his recent history of a public reprimand in January 2002.

Crew responds that he should not be disciplined. He argues he has proven by a preponderance of the evidence that he did not violate any of the rules of professional responsibility. He contends he did not mislead the Hodges, did not fail to communicate material information to them, and did not fail to represent them diligently and competently. He asserts that not putting the contingent fee agreement in writing was not an issue with the Hodges and did not cause them any harm or injury. Crews further responds that, should the Court choose to discipline him, then the discipline should be no more severe than a reprimand. He argues that all the chief disciplinary counsel has proven is an accidental, unintentional violation due to a mistake on his part.

SC86408
Rodney Glass and Diane Glass v. First National Bank of St. Louis, N.A.
St. Louis County
Challenge to deed of release statute and judgment entered thereunder

In December 1999, Rodney and Diane Glass executed a $525,000 deed of trust in favor of First National Bank of St. Louis, N.A., for the purchase of their Des Peres, Missouri, home. The Jefferson Bank's loan servicing center subsequently serviced the mortgage. In 2001, the Glasses began refinancing their home. The loan servicing center shows that the Glasses' mortgage loan was satisfied in June 2001, when it executed a deed of release for the Glasses' mortgage loan. The loan servicing center prepared and forwarded the Glasses' deed of release to the St. Louis County recorder of deeds' office in June or July 2001. The recorder of deeds' office did not record the deed of release until October 2001. In July or August 2001, Rodney Glass sent an undated, certified letter to First National bank, purportedly requesting a deed of release and enclosing a check for recording fees. In August 2001, the bank sent the Glasses their original note, marked "paid." The Glasses subsequently sued First National Bank, alleging causes of action for penalties and attorneys' fees under section 443.130, RSMo 2000. Both parties submitted motions for summary judgment. In December 2003, the court granted summary judgment in favor of the Glasses, awarding them $52,500. First National Bank appeals.

First National Bank argues the court erred in granting the Glasses summary judgment. It contends the Glasses' demand letter failed to follow the statutory requirements because it did not reference section 443.130, RSMo 2000, and did not request that the deed of release be sent within 15 business days. The bank asserts that it fulfilled its obligations under section 443.130 by executing the Glasses' deed of release and forwarding it to the recorder of deeds' office before receiving Rodney Glass' demand letter. It argues that, due to circumstances beyond its control, the deed of release was not recorded within 15 business days. The bank contends the Glasses use of section 443.130 was predatory and done for personal gain. It asserts that such a use is not within the statute's legislative intent to clear titles through the filing of deeds of release. The bank argues the Glasses have not suffered any prejudice from the failure to receive the deed of release because they successfully refinanced their home mortgage on three subsequent occasions, each time attempting to collect the penalty provided pursuant to section 443.130. The bank contends the Glasses lack standing to challenge compliance with the statute because the statute requires the deed of release to be delivered to the party making satisfaction, which in this case was the bank and not the Glasses. The bank asserts that sections 443.060, RSMo 2000, and section 443.130 are unconstitutional. It argues these sections violate the due process, equal protection, unlawful takings and excessive fines clauses of the state and federal constitutions. The bank further argues, based on this Court's recent holdings in Garr v. Countrywide Home Loans, Inc., 137 S.W.3d 457 (Mo. banc 2004), and Brown v. First Horizon Home Loan Corp., 150 S.W.3d 287 (Mo. banc 2004), that the Glasses' demand letter failed to meet the strict requirements of section 443.130.

The Glasses respond that the court properly granted summary judgment in their favor. They argue they were entitled to judgment as a matter of law and that there were no genuine disputes of material fact. The Glasses contend the bank did not deliver to them a deed of release within the statutorily prescribed period of 15 business days after receipt of their request and tender of costs made pursuant to section 443.130. They assert that their demand letter complied with the requirements of the statute and that the bank did not fulfill its obligations under the statute. The Glasses respond that the fact that they successfully have refinanced their home three times does not change the fact that the bank did not comply with section 443.130 or that the bank, therefore, is liable for the statutory forfeiture amount. They argue they are the "persons making satisfaction" within the meaning of section 443.130. The Glasses contend that sections 443.060 and 443.130 are not unconstitutional. They assert that these sections are not unconstitutionally vague, do not violate substantive due process rights and do not violate equal protection rights. They further respond that section 443.130 does not impose an arbitrary punishment, does not constitute an unlawful taking and does not constitute an excessive fine. In addition, the Glasses argue that there is a continuing policy reason for providing the enforcement mechanism of section 443.130 to protect consumers, title companies and the general need for marketable titles. They contend this Court should disregard the Missouri Bankers Association's brief for failure to comply with appellate briefing rules and for raising facts and issues that never were presented to the trial court.

Missouri Bankers Association argues, as a friend of the Court, that the court's judgment should be reversed. The association argues the court's judgment is inconsistent with section 443.130 and with the state and federal constitutions. It contends section 443.130 does not entitle the Glasses to relief pursuant to this Court's holdings in Garr and Brown.

SC86229
State ex rel. BP Products North America, Inc. v. The Honorable John A. Ross
St. Louis County
Characterization of claims and applicable statute of limitations

Brian Wandersee owns Advanced Cleaning Technologies, Inc., (ACT), which distributes car wash machines, their parts and supplies and which services these machines. One of the companies to which it was a distributor and for which it provided service was PDQ Manufacturing, Inc. In December 1997, BP Products North America purchased three machines from PDQ. Two of the machines were installed at Amoco gas stations in the St. Louis, Missouri, area. The third, a $90,000 machine, intended for a proposed Amoco station in St. Charles County that never was built, remained in storage at an ACT facility in Overland, Missouri. BP paid for the machines in January 1998, but the third machine never was delivered to it. Wandersee subsequently was arrested and indicted for stealing more than $750, but the prosecutor filed a nolle prosequi (a voluntary withdrawal of charges). In April 2003, Wandersee and ACT sued BP for injurious falsehood and false arrest. They seek recovery of various actual and punitive damages and expenses. In December 2003, BP moved for summary judgment. In May 2004, the court granted the motion as to Wandersee's false arrest claim but denied the motion as to the injurious falsehood claims against BP. BP seeks a writ of prohibition from this Court.

BP Products argues it is entitled to an order prohibiting the trial court from proceeding further with this case. It contends the two-year statute of limitations pursuant to section 516.140, RSMo, applies. It asserts that, pursuant to this statute of limitations, Wandersee and ACT's injurious falsehood claims are barred. BP argues these claims actually are defamation claims rather than injurious falsehood claims because the claims implicate Wandersee and ACT's reputational interests. BP contends that, even if the claims are deemed injurious falsehood claims, they still are barred by the two-year statute of limitations. It asserts that, because this tort is broad enough to encompass other torts, including defamation, the injurious falsehood tort should not be given the five-year statute of limitations. BP argues, in the alternative, that the slander of title claims to which Wandersee and ACT compare their injurious falsehood claims should be subject to a two-year statute of limitations under the plain language of section 516.140.

Wandersee and ACT respond that the trial court properly applied a five-year statute of limitations to their claims. They argue their claims are for injurious falsehood, an action that is a distinct tort that is not "otherwise enumerated" pursuant to section 516.120(4), RSMo. They contend, in the alternative, that their claims are most analogous to a claim for slander of title, which has a five-year statute of limitations pursuant to section 516.120(4).