W. Dudley McCarter
Behr, McCarter & Potter
St. Louis

On May 5, 1992, Kenneth Baumruk entered the St. Louis County Courthouse carrying two handguns in his briefcase. He was there for a hearing in connection with the dissolution of his marriage to his wife, Mary. During the hearing, he pulled out the guns, shot and killed his wife, and injured several others, including a bailiff and a security officer. As he was running down a courthouse hallway, he was shot by police officers and captured. The St. Louis media provided extensive coverage of the incident and described it as a rampage and shooting spree. After the shooting, St. Louis County doubled the number of security guards on duty at the courthouse and installed metal detectors. Several years after the incident, polls indicated that approximately 70% of St. Louis County residents remembered Baumruk's shootings at the courthouse. He was indicted on first degree murder and multiple counts of assault. In 1995, he was declared mentally incompetent to stand trial but, after a second competency hearing in 2000, was found to be competent. In 2001, a jury convicted him of murder in the first degree and recommended the death penalty. The conviction was reversed, however, and remanded for a new trial in a different venue in State of Missouri v. Baumruk, No. SC 83745 (Mo. banc 2002).

The circumstances of this trial, held where the shootings occurred, are inherently prejudicial and denied Baumruk his right to a fair trial under the Sixth and Fourteenth Amendments. The jurors were aware that the courtroom in which they sat was the same as the crime scene and that the building they entered every day of the trial was the scene of the terrifying events. When the jurors arrived at the courthouse, they entered through metal detectors that had been installed as a direct result of Baumruk's shooting spree. The jurors, in effect, sat at the murder scene while determining guilt or innocence and the penalty to be imposed. The right to jury trial guarantees a fair trial by a panel of impartial, indifferent jurors. The association between the jurors and the crime scene in this case created a prejudicial environment, which undermined the basic guarantee of trial by jury. While there is no question, based on the evidence at trial, that Baumruk shot and killed his wife, that is only one aspect of the case. The disputed issues for the jury were his state of mind at the time of his shootings and ultimately whether he should receive the death penalty. In this case, the physical setting of the trial was a constant reminder of the horrible events that occurred in the very place where the trial was held. There is no reason to believe that St. Louis County can be a neutral place where Baumruk's right to a fair trial by jury can be assured.

Nondisclosure by Juror Must Be Based on a Clear Question

Judith Ewing brought a personal injury action against several defendants, seeking recovery for the injuries she sustained in a motor vehicle accident. During voir dire, the panel was asked whether any of them or their family members had been involved in an automobile accident. After one juror disclosed an accident, defendant's attorney asked a follow-up question as to whether that experience might make that panel member more sympathetic to the plaintiff. A juror who was selected for the final panel did not respond to these questions even though his son had been involved in a recent automobile accident in which there were multiple fatalities and serious injuries to other individuals. Suit had been filed against the juror's son six days before voir dire. After the jury returned a verdict for the defendants, plaintiff's attorney filed a motion for new trial based on the nondisclosure by this juror. The trial court denied the motion for new trial on the grounds that the juror misunderstood the question and that his nondisclosure was unintentional. The Court of Appeals affirmed in Ewing v. Singleton, No. WD 59763 (Mo. App. W.D. 2002).

Our Constitution guarantees the right to a fair and impartial jury composed of 12 qualified jurors. Members of the jury panel have a duty to fully, fairly and truthfully answer all questions. Absent a clear question, however, a juror's failure to provide information cannot constitute an intentional or an unintentional nondisclosure. A question posed to the panel on voir dire is clear only if a lay person would reasonably conclude that the undisclosed information was solicited by the question. Here, based on the questions asked and responses of other jurors, the juror who did not disclose his son's involvement in an automobile accident could have reasonably believed that the questions were directed to those jurors who might have experiences making them sympathetic to the plaintiff, but were not interested in circumstances that might make them sympathetic to the defendants.

There has been considerable controversy in litigation about disclosure by potential jurors. Several cases have required retrial because of nondisclosure. Jurors and judges have found the process distasteful. Due to the vital importance of prior litigation experience, both counsel and the courts should stress to jurors the vital importance of full and truthful answers. Both counsel and the courts should encourage jurors to volunteer information if they are in doubt as to its relevance. One would also expect that counsel and trial courts would endeavor to ask questions so clear and specific that there could be no confusion about their meaning or the information sought. Specific, clearly defined questions, using terms that would be understood by laymen, will go a long way toward actually identifying potential bias before trial, rather than afterwards. Although this responsibility is initially that of the trial counsel, there is nothing improper in the trial court taking reasonable steps to encourage emphasis on importance, clarity and specificity.

State High School Association Rules on Athletic Competition Are Constitutional

Claire Letendre, a student at St. Joseph's Academy in St. Louis, was a member of the Parkway Swim Club. Her swim club practices and competes all year long. She wanted to join her high school swim team, but learned that she was ineligible under Missouri State High School Activities Association Bylaw 235. Bylaw 235 states that during the sports season, a student cannot practice or compete as a member of a non-school team in the same sport. She filed suit against MSHSAA, alleging that this bylaw violated her rights under the First and Fourteenth Amendments to the Constitution. The trial court entered judgment for MSHSAA, and the Court of Appeals affirmed in Letendre v. Missouri State High School Activities Association, No. ED 79653 (Mo. App. E.D. 2002).

The power of a court to review the quasi-judicial actions of a voluntary association is limited to determining: (1) whether there are inconsistencies between the association's charter and bylaws, (2) whether the member has been treated unfairly, (3) whether the association's undertakings were prompted by malice, fraud, or collusion, and (4) whether the charter or bylaws contravene public policy. Where there is no suspect classification on a fundamental right protected by the U. S. Constitution, equal protection claims under the Fourteenth Amendment are reviewed under the "rational relationship" standard. Since Letendre had no fundamental right to play high school athletics, the court's inquiry was confined to whether there is a rational relationship between the bylaw and a legitimate interest of MSHSAA. A rule of a quasi-judicial voluntary association will not be set aside if any set of facts reasonably may be conceived to justify it. Here, even though the rule may result in some inequities, there are reasonable grounds for the bylaw because a reasonable person could believe that a legitimate goal of the association is furthered by it. A reasonable person could conclude that it is not in the best interests of a majority of high school students to compete in the same sport at the same time on different teams, with different coaches, different rules, different practice schedules and different competition schedules.

Moreover, the bylaw did not violate Letendre's rights of full association under the First Amendment. The MSHSAA bylaw does not impinge upon intimate human relationships fundamental to personal liberty, nor core freedoms protected by the First Amendment, such as speech, assembly or exercise of religion. There is no First Amendment right for a high school student to associate with both a school and a non-school swim team. The bylaw was rationally related to the MSHSAA's purpose of drafting rules that protect the welfare of the greatest number of high school athletes possible.

Heart Attack Suffered at Work Covered By Workers' Compensation

During work, Juan Reyes got into an argument with his supervisor. During the argument, he became pale, started to perspire, experienced shortness of breath and felt a pain in his chest. Because he feared he would not be paid if he left work, he returned to his workstation as directed by his supervisor. After returning to his workstation, he continued to perspire and have shortness of breath. He then collapsed and went into cardiac arrest. The paramedics arrived, inserted an endotracheal tube and defibrillated him. He was transported to a hospital emergency room and regained consciousness, but continued to experience problems resulting from the heart attack. He filed a claim for workers' compensation and presented medical testimony that his argument with his supervisor was most likely the triggering factor for his heart attack. The administrative law judge denied his claim, but the Labor and Industrial Relations Commission reversed the ALJ decision and awarded him total disability benefits. The Court of Appeals affirmed in Reyes v. Mar-Kay Plastics, No. W.D. 60298 (Mo. App. W.D. 2002).

It is not necessary that the individual's employment be the sole or primary cause of the injury for it to be compensable, only that it be a substantial factor in causing the injury. The workers' compensation act provides for compensation for an injury to an employee arising out of, and in the course of, employment. The term "in the course of employment" refers to the time, place and circumstances of the injury. "Arising out of" means that a causal connection exists between the employee's duties and the injury. An injury arises out of employment if it is a natural and reasonable incident of the employment. An injury is only compensable if it is clearly work-related and an injury is clearly work-related if work was a substantial factor in the cause of the resulting medical condition. Here, the employee returned to his assigned work site after the argument with his supervisor and began performing the regular duties of his job. He sustained his burden of proving that the injury arose out of and in the course of his employment. The employee established by medical testimony that his work activities after the argument with his supervisor were a substantial factor in causing his heart attack.

Public Policy Favors Arbitration

James Athon borrowed money from Conseco Finance to purchase a mobile home. As part of the loan transaction, he signed a promissory note and security agreement. The security agreement stated that all disputes arising from or relating to the contract would be resolved through binding arbitration. Athon died, and Conseco repossessed the mobile home. Athon's estate then filed a suit against Conseco for conversion, alleging that it wrongfully repossessed the mobile home. Conseco filed a motion to compel arbitration, which the trial court denied. The Court of Appeals reversed, however, in Estate of James Athon v. Conseco Finance Servicing Corp., No. WD 60585 (Mo. App. W.D. 2002).

Here, the security agreement contains a broad arbitration clause, covering all disputes arising out of the contract. Where, as here, the arbitration clause is broad, only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail. A party cannot avoid the broad language of an arbitration clause by casting its complaint in tort. Rather, arbitration must be compelled where the tort claim arises directly out of a dispute regarding the terms of the parties' contract. For a tort claim to be subject to arbitration under a broad arbitration clause, it must raise some issue that requires reference to or construction of some portion of the contract. Where a tort claim is independent of the contract and does not require reference to the underlying contract, arbitration is not compelled. Here, the claims asserted against Conseco require reference to, or construction of, some part of the contract; they are not independent of the contract. The plaintiff's claims were covered under the broad arbitration provision of the contract and the trial court erred in denying Conseco's motion to compel arbitration.

To Be Tax Exempt, Property Must Be Used Exclusively For Charitable Purposes

Bethesda Barclay House, a non-profit corporation that operates a retirement facility, filed suit against the St. Louis County Board of Equalization, seeking a declaration that it was tax-exempt under Article X, Section 6 of the Missouri Constitution. In its advertisements, Barclay House is described as a premiere retirement facility with fine amenities. Its tenants sign a residency agreement, under which they pay a monthly rent ranging from $849 to $1,591. In addition, they pay an entrance fee ranging from $40,000 to $395,000. Barclay House invests the entrance fees paid by its tenants. The residency agreement states that monthly rent may be increased at any time in the sole discretion of Barclay House, and that if a tenant fails to pay rent when due, Barclay House may recover all unpaid rent, plus attorney's fees. From 1995 to 2000, Barclay House offered financial assistance to eight prospective tenants and five of those tenants accepted the financial assistance. The fee reductions on those five tenants represented less than 1% of Barclay House's revenues. During the same time period, Barclay House pre-paid $6.7million toward a loan due to Bethesda Foundation. The trial court found that Barclay House was not entitled to tax exemption and the Court of Appeals agreed in Bethesda Barclay House v. St. Louis County Board of Equalization, No. E.D. 79264 (Mo. App. E.D. 2002).

Under well-established principles, taxation of property is the rule and tax exemption is the exception. Statutes that grant tax exemption should be strictly construed against the party claiming the exemption. Claims for exemption are not favored in the law; the property owner bears a substantial burden to prove that the property falls within the exempted class. A three-pronged test has been adopted to determine whether property is used exclusively for charitable purposes and therefore exempt from taxation under Article X, Section 6 of the Missouri Constitution. Those elements are: (1) the property must be owned and operated on a not-for-profit basis, (2) the property must be dedicated unconditionally to a charitable activity, and (3) use of the property must benefit an indefinite number of persons.

Here, Barclay House failed to demonstrate how the property was operated on a not-for-profit basis. It generated enough revenue to prepay $6.7 million on a loan from an affiliated entity. As shown by the monthly rent charged to its tenants and its own advertisements, it considered itself a premiere retirement facility with luxurious amenities, and not a facility for charitable purposes. Finally, Barclay House failed to show that the financial discounts it gave to five tenants establish use of the property to benefit an indefinite number of people or society in general. In sum, Barclay House failed to prove that it operated on a not-for-profit basis, that the property was dedicated unconditionally to charitable activity, and that the property's use benefited society.

Evidence of Traffic, Noise and Negative Aesthetic Impact was Competent Evidence to Support Denial of Conditional Use Permit

Moto Mart applied to the City of St. Louis for a conditional use permit to operate a 24 hour tractor-trailer fueling station and restaurant. Moto Mart's parcel was at the first exit in Missouri for motorists crossing over the Mississippi River from Illinois on I-270. This area is largely undeveloped and contains many nature areas open to the public, including the confluence of the Missouri and Mississippi Rivers, Columbia Bottoms Conservation Area, Riverfront Trail, Lewis & Clark Monument and the historic old Chain of Rocks Bridge. The area has also been considered for numerous scenic developments and visitors' centers to highlight the confluence of the Missouri and Mississippi Rivers in conjunction with the Lewis & Clark bicentennial. Moto Mart's application was denied by the board of adjustment of the City of St. Louis after conducting a hearing. At the hearing, numerous witnesses testified in opposition to the application on the basis of increased noise and traffic and lack of compatibility with both existing and proposed uses of surrounding areas. The trial court reversed the board of adjustment, but the Court of Appeals upheld the board's denial of the CUP to Moto Mart in Moto, Inc. v. Board of Adjustment of City of St. Louis, No. E.D. 80346 (Mo. App. E.D. 2002).

The court's review is limited to determining whether the board's decision is supported by competent and substantial evidence on the whole record or is arbitrary, capricious, unreasonable, unlawful or in excess of its jurisdiction. When determining whether substantial evidence exists to support the board's decision, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the decision. Much of the testimony presented in opposition to Moto Mart centered on the use being incompatible with the surrounding areas and the negative impact the facility would have on adjacent properties. Opponents of the development were collectively concerned that if Moto Mart's conditional use was approved, a tractor-trailer fueling station would drastically change the aesthetics of the area. There was competent and substantial evidence to support a finding that the proposed use would not complement or be compatible with surrounding uses and that the proposed use would create a noticeable increase in traffic and noise. Numerous witnesses testified about the character of the surrounding area, as well as current and proposed developments. Although many of the plans for a visitors' center, historical site, conservation area and hiking and biking trails were in the early stages of development, there was no evidence to show that these plans would not or could not be completed. The construction of a tractor-trailer fueling station does not complement, nor is it compatible with, the area as it currently exists or the proposed development plans.

Moreover, numerous witnesses testified regarding the increase in traffic and noise that would be generated by this development. There was also testimony from area residents about their concerns that this facility would exacerbate an existing traffic problem. There was substantial and competent evidence before the board to prove that Moto Mart's proposed use would create a noticeable increase in traffic and noise. Since there was substantial and competent evidence supporting the board's denial of the CUP, the court need not consider Moto Mart's contention that it presented sufficient and competent evidence to support the issuance of a conditional use permit. The court will not substitute its discretion, even if different factual findings could have been made in reaching the opposite result.

Trial Court's Denial of Motion to File Third-Party Petition One Month Prior to Trial Was Not Abuse of Discretion

PR Developers was a subcontractor to Robertson Contractors for a MoDOT project involving the construction of a bridge, ramps and roadways at I-55 and Route H. The MoDOT specification stated that if the contractor experienced delays due to the location of utilities, working days would be extended and that would be the contractor's sole compensation. At the time it entered into the subcontract with PR Developers, Robertson told PR that the power lines would be moved in time for PR to begin work. The lines were not moved by the date indicated and PR had to begin work on another side of the project. PR was also delayed due to grading problems and a sandy subgrade on the project. PR notified Robertson of the delays and submitted a claim against it and its bonding company for the extra costs it incurred. PR then filed suit against Robertson and its bonding company. One month prior to trial, Robertson requested leave to file a third-party petition against MoDOT, which the trial court denied. The jury returned a verdict of $1.58 million against Robertson and Safeco. The Court of Appeals affirmed in State ex rel. PR Developers v. Safeco, No. E.D. 79860 (Mo.App. E.D. 2002).

Under Rule 52.11, if a defendant does not file its third-party petition within 10 days after filing its original answer, it must obtain leave of court on motion and notice to all parties to the action. The right to implead a third party is not an absolute, but is a matter within the discretion of the court. Discretionary rulings are presumed correct and the appellate court will only disturb such rulings when the trial court has abused its discretion. To constitute an abuse of discretion, the trial court's ruling must be so arbitrary and unreasonable as to shock one's sense of justice and indicate a lack of careful consideration. If there is any reasonable ground upon which the trial court could have denied leave, there is no abuse of discretion. The issue is considered in the light most favorable to the results reached by the trial judge. Here, the motion for leave to file a third-party petition against MoDOT was filed less than a month before the trial date. In denying the motion, the trial court stated that there was no reason for Robertson to wait so long to file the motion and that PR would be prejudiced by postponing the trial and delaying the case for many more months. The trial court weighed the advantages of granting leave to file the third-party petition against the disadvantages of delay to the plaintiff and properly exercised its discretion in denying leave to file the third-party petition.

Only Governmental Bodies Are Subject to the Sunshine Law

Williams Communications, Inc. is an interstate telecommunications carrier that has an office in Jackson County and provides telecommunication services in Missouri as a public utility. Under § 523.010, RSMo., Williams has the authority to condemn land. Jerry Stewart filed a Sunshine Law request with Williams Communications, pursuant to Chapter 610, RSMo, requesting records and documents pertaining to the acquisition of certain easements by Williams. Williams denied the request, stating that it was not subject to the Sunshine Law. Stewart then filed suit in Jackson County Circuit Court seeking enforcement of its Sunshine Law request. The trial court granted the motion to dismiss filed by Williams and the Court of Appeals affirmed in Stewart v. Williams Communications, No. W.D. 60332 (Mo. App. W.D. 2002).

The provisions of the Sunshine Law are to be liberally construed to promote the public policy of providing the public with access to government records and meetings. The Sunshine Law applies, however, only to the records of governmental bodies. A public governmental body is one that has the power to govern by the formulation of policies and the promulgation of statutes, ordinances, rules and regulations, or the exercise of quasi-judicial power. Williams is a private corporation; it is not a subdivision of the government or a governmental agency.

Williams cannot be considered a governmental body simply because it has the power of eminent domain. Williams is not an entity created by a state statute, and § 610.010, RSMo, does not include entities that are merely controlled by state statutes or regulations. Moreover, Williams is not an entity that has the power to promulgate rules that directly affect the citizens of Missouri. The legislature specifically identified in § 610.010, RSMo, what entities with the power of eminent domain fell under the definition of public governmental bodies and it did not include private, for-profit corporations, such as Williams. The legislature did not intend that just because an entity has the power of eminent domain, it is a public governmental body as defined under the Sunshine Law.

Grass-Cutting Ordinance was Valid Exercise of Police Power

The City of Overland has an ordinance requiring the owners of private property that abut a public right-of-way or easement to maintain the trees and cut the grass in the abutting right-of-way or easement. The city issued a complaint against Lyle Wade for his failure to mow the grassy right-of-way area abutting his property between the sidewalk and the street. After being convicted in the municipal court, he appealed to the circuit court, contending that the ordinance violated his constitutional rights by requiring him to maintain city property without compensation. The Court of Appeals affirmed his conviction in City of Overland v. Wade, No. E.D. 80257 (Mo. App. E.D. 2002).

A municipality may exercise its general police powers by enacting ordinances for the welfare and safety of its citizens. An ordinance is presumed a valid exercise of police power and the party challenging it carries the burden of showing that it is unreasonable. An ordinance is a legitimate exercise of police power if the express requirements of the ordinance bear a substantial and rationale relationship to the health, safety, peace, comfort, and general welfare of the citizens. If reasonable minds differ as to whether a particular ordinance has a substantial relationship to the health, safety or welfare of the public, then the issue is decided in favor of the ordinance. Here, the ordinance requiring the mowing of a grassy area in a right-of-way is a legitimate exercise of the city's police power and is not unconstitutional. Overland's ordinance was substantially and rationally related to the health, safety, peace, comfort, and welfare of its citizens. Moreover, the desire to maintain the beauty and aesthetics of a municipal neighborhood is a proper concern to be addressed through the police powers of a municipality.

Mechanic's Lien Notice Sufficient If It Substantially Complies With Statutory Requirements

Bellon Wrecking filed suit to enforce its mechanic's lien against property on which it had demolished a building. The trial court denied its mechanic's lien on the grounds that the "notice to owner" given by Bellon was not in 10-point bold-faced type, as required by § 429.012, RSMo. The Court of Appeals reversed, however, in Bellon Wrecking & Salvage Co. v. Rohlfing, No. E.D. 8012 (Mo. App. E.D. 2002), finding that the notice substantially complied with the statute.

The purpose of the notice provision under § 429.012, RSMo, is to warn inexperienced property owners of the danger that lurks in the mechanic's lien statute. Though reluctant to allow exceptions under the statute, courts have found substantial compliance where warranted by the facts. The language in the notice mirrored that required under § 429.012, but it was not in all caps, with 10-point bold type. Here, the parties were business persons. The fact that the notice was not in bold print, a requirement meant to bring attention to the language, is not of significant import. The notice given by Bellon substantially complied with the requirements of § 429.012, RSMo.