Case summaries for July 2 - July 9
Each week, The Missouri Bar provides links to all hand downs published online during the past seven days by the Supreme Court of Missouri and the Missouri Court of Appeals. The Missouri Bar has created headings and summaries for each case. Summaries are not part of the opinions of the Court. They have been prepared for the convenience of the reader and should not be quoted or cited.
Emergency Discipline Case Transferred
Statutes allow an expedited suspension of a physician’s license without a pre-deprivation evidentiary hearing, with a deadline for holding the post-deprivation hearing on cause for discipline, but no deadline for holding the hearing on the degree of discipline. “The guarantee of a prompt dispositional post[-]deprivation hearing, however, is a critical factor in determining the constitutional validity of the previously invoked interim or temporary deprivation processes.” Appellant raised due process issues of first impression, which were more than merely colorable, and raised real and substantial constitutional claims. The eventual full evidentiary hearing may moot the issue, but that means that the issue could always evade judicial review, and “it is unclear how any future litigant would be better situated to raise such a challenge in a live controversy.” Therefore, the Court of Appeals transfers the case to the Missouri Supreme Court.
Blake H. Donaldson, D.O. vs. Missouri State Board of Registration for The Healing Arts
Missouri Court of Appeals, Western District - WD83217
Departing Fee-Split Breached Fiduciary Duty
Regardless of disciplinary rule governing fee-splitting agreements, appellant’s misrepresentation of his caseload’s value to associated lawyers constitutes a claim for breach of fiduciary duty and tortious interference with a business expectancy, and damages awarded do not constitute split fees. Therefore, the amount of fees due respondents does not determine the circuit court’s award of damages to respondent. The clients’ control over who represents them was not relevant to appellant’s conduct toward respondents. Appellant did not show that respondent made any inconsistent allegations of fact supporting an application of judicial estoppel.
Stephen W. Holaday, P.C., and Stephen W. Holaday vs. Tieman, Spencer & Hicks, L.L.C.
Missouri Court of Appeals, Western District - WD82792
No Continuance for Missing Witness
Rule provides that the ruling on a continuance based on an absent witness depends on how diligently the movant sought to secure the witness and the materiality of the witness’s evidence. The defense was not diligent in securing the witness, it waited “until the Thursday before the Monday hearing” to contact the witness, did not try over the weekend, and never sought a subpoena. The evidence was not outcome-determinative, it was similar to other evidence that circuit court found unpersuasive. Circuit court did not abuse its discretion in denying the motion for continuance.
STATE OF MISSOURI, Plaintiff-Respondent v. MATTHEW CURTIS TABER, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36076
To support the exercise of an officer’s community caretaker function requires more than speculation, it requires specific and articulable facts, which officer said were absent. “[S]pecific and articulable facts from the totality of the circumstances [,]” constituting at least reasonable suspicion of criminal activity, are also necessary to justify a warrantless traffic stop even when investigative, temporary, and non-custodial. Officer’s probable cause statement said that officer did a caretaker check, only, on driver because driver’s car was parked in the entrance to a restaurant. Circuit court expressly found officer’s later testimony, that driver was blocking the entrance in violation of traffic laws, not credible. Deferring to that credibility determination, the Court of Appeals affirms the circuit court’s ruling, granting driver’s motion to suppress.
State of Missouri vs. Jesse B. Alford
Missouri Court of Appeals, Western District - WD83177
Plaintiff’s Verdict Affirmed
“[W]here proof of causation requires a certain degree of expertise, the plaintiff must present expert testimony to establish causation [,]” based on “a reasonable degree of medical certainty [,]” and that testimony can come from “the plaintiff’s or defendant’s expert(s) insofar as it aids the plaintiff in making a submissible case.” Plaintiff made a submissible case as to causation, by reference to plaintiff’s and defendant’s expert testimony, that plaintiff’s voice disorder resulted from defendant lacerating plaintiff’s tongue with a dental drill. Remedies applicable to events are those provided by the law in effect when the events occur, and later statutes cannot take away those remedies, because the Missouri Constitution bars retrospective application of laws. Therefore, defendant’s negligence in 2012 is subject to 2012 law without regard to 2015 statutes. When the plaintiff filed pleadings is irrelevant. Defendant did not show any abuse of discretion in circuit court’s denial of remittitur of non-economic damages, because plaintiff showed pain and suffering, and defendant did not show any jury mistake or bias.
Christina Bojorquez, Respondent, v. Thomas E. O'Keeffe, D.D.S., A Professional Corporation, and Thomas E. O'Keeffe, D.D.S., Appellants.
Missouri Court of Appeals, Eastern District - ED107858
Defendant’s Verdict Is Unambiguous
On a verdict against defendant employee, jury’s entry on the verdict form of a co-defendant employee already dismissed, was mere surplusage even in the context of one juror’s question about the dismissed co-defendant employee. Nothing showed that the jury meant to find for plaintiff. Defendant’s judgment affirmed.
KAREN HOSFELD, Plaintiff-Appellant v. PCRMC/BOND CLINIC MEDICAL GROUP INCORPORATED, Defendant-Respondent and DANA VOIGHT, MD, Defendant
Missouri Court of Appeals, Southern District - SD36457
Appeal Dismissed When Motion Too Late
Rule on setting aside a guilty plea requires claims not subject to any other rule and the timely filing of an initial motion. A motion filed 22 years after conviction was not within rule’s time limits, and appellant’s allegations were subject to relief under other rules. Appeal dismissed.
State of Missouri vs. James J. Hamilton
Missouri Court of Appeals, Western District - WD82784
No Appeal for Trustee
Trusts had no-contest clauses, the enforceability of which was the subject of the circuit court’s ruling. That ruling, the statutes provide, is subject to appeal like other rulings, final or interlocutory, which requires standing in the appellant to show standing to appeal. Appellant trustee of the trusts had no standing to appeal the circuit court’s ruling, because that ruling did not aggrieve the trustee, in that it did not affect administration of the trusts. Representing aggrieved beneficiaries does not confer standing because appellant is also a beneficiary, creating a conflict of interest, in which case the statutes bar representing the beneficiaries.
In re ROMONA WOOLDRIDGE DURABLE POWER OF ATTORNEY, ROBERTA HULL, Respondent vs. MATTHEW HULL, Trustee, Appellant DAVID YANCEY, Personal Representative of the Estate of Romona Wooldridge, Respondent
Missouri Court of Appeals, Southern District - SD36218
Sale of Transmission Line Approved and Affirmed
Public Service Commission had authority over sale of assets because they were “to be used” in transmitting electricity. An issue decided in earlier litigation cannot be subject to re-litigation in a later action by anyone in privity with the earlier litigants. Privity with the earlier litigants means that the earlier litigants “had the same legal interest as that represented by” the later litigants. Intervention of appellants in litigation before the Public Service Commission does not negate privity because the Commission’s regulations on intervention differ from the Missouri Supreme Court’s rule on intervention.
In the matter of the joint application of Invenergy Transmission LLC, Invenergy Investment Company LLC, Grain Belt Express Clean Line, LLC and Grain Belt Express Holding LLC for an order approving the acquisition by Invenergy Transmission LLC of Grain Belt Express Clean Line, LLC,; Eastern Missouri Landowners Alliance dba Show Me Concerned Landowners; and Joseph and Rose Kroner vs. Public Service Commission of the State of Missouri
Missouri Court of Appeals, Western District - WD83236
Award Must Name Dependents for Substitution of Parties
Under statutes in effect at the time, claimant’s final award for permanent and total disability vested the same rights in dependents—at the time of the injury—surviving claimant’s death, but only those named in that final award, or at least identifiable as such from findings of fact. Evidence identifying those dependents is insufficient. “[T]he absence from the Final Award of any such finding left the Commission without authority to disturb the Final Award and substitute them as parties to the underlying claim.”
Ronald A. Lawrence II (Deceased); Nancy Lawrence Deanna Lawrence and Mayme Lawrence vs. Treasurer of the State of Missouri; Custodian of The Second Injury Fund
Missouri Court of Appeals, Western District - WD83123