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

In 1995, R. W. pleaded guilty to sexual assault of a minor. He received a suspended imposition of sentence and was placed on probation for five years. As a condition of his probation, he was required to register as a sex offender under Missouri's sex offender registration statute, § 589.400, RSMo. After R. W. completed his probation, he stopped registering as a sex offender. During 2003, the Jackson County Sheriff's Office requested that he register as a sex offender and renew his registration every 90 days. He declined to register and filed a declaratory judgment action alleging that the sex offender registration statutes as applied to him are unconstitutional. The circuit court denied this request and the Supreme Court of Missouri affirmed in R. W. v. Sanders, No. SC 85652 (Mo. banc 2005).

R. W. committed the crime prior to the enactment of the sex offender registration statute. A two-stage inquiry determines whether a retrospective statute constitutes an invalid ex post facto punishment, or a valid, non-punitive civil regulation. If the statute was intended to establish a punishment, the inquiry ends and an ex post facto violation is established. If the statute intends to establish a non-punitive civil regulatory system, the inquiry proceeds to a determination of whether the statute is sufficiently punitive in effect so as to negate the intent to enact a non-punitive civil registration program. The obvious legislative intent for enacting the statute was to protect children from violence at the hands of sex offenders. The statute does not constitute a punishment and is therefore not an invalid ex post facto law. Along with any deterrent effect, the registration statute also serves the regulatory purpose of assisting authorities with investigation of sex crimes.

The registration requirement advances the legitimate, non-punitive purpose of public safety and protecting children from sex offenders. The registration statutes are not excessive in relation to the regulatory purposes. As applied to those who, as did R. W., commit sex offenses against a minor, the registration requirement is not excessive given the assistance it provides law enforcement agencies in investigating future offenses. The registration requirements do not impose substantial physical or legal impediments upon a registrant's ability to conduct his or her daily affairs. While the registration statute has both punitive and regulatory attributes, a weighing of the factors leads to the conclusion that the thrust of the registration and notification requirements are civil and regulatory in nature. R. W. has not carried his burden of clearly and undoubtedly showing that the registration statute violates constitutional limitations on ex post facto laws.

Public Officials Are Entitled to Official Immunity

Paul Muren was treated at the City of Columbia/Boone County Health Department Clinic by the nurses and an advanced practice nurse. After he tested positive for tuberculosis, the advanced practice nurse prescribed treatment for him that ultimately destroyed his liver. He filed a medical negligence suit against Dr. Debra Howensteine, the medical director for the clinic, alleging that she negligently failed to train and supervise the nurses and nurse practitioners at the clinic. The trial court denied Dr. Howensteine's motion for summary judgment, but the Supreme Court of Missouri issued a writ of prohibition in the case of State ex rel.Howensteine v. Roper, No. SC 85998 (Mo. banc 2005).

Official immunity shields officials from liability for injuries arising out of their discretionary acts or omissions. An official may be held liable for injuries arising out of ministerial acts. Public duty immunity holds that a public employee may not be held civilly liable for breach of a duty owed to the general public as distinguished from a duty owed to particular individuals. Dr. Howensteine met the test for official immunity since she was an official and acting in her discretionary capacity. This immunity protects those individuals who, in the face of imperfect information and limited resources, must daily exercise their best judgment in conducting the public's business. Dr. Howensteine's position as a medical director existed to discharge the city, county and state obligations to improve the health of the public. The health department was delegated this authority by law; Dr. Howensteine was a public official.

Whether a function is discretionary or ministerial is a case by case determination to be made after weighing such factors as the nature of the official's duties, the extent to which the acts involve policy making, or the exercise of professional expertise and judgment. The duties exercised by Dr. Howensteine as medical director of the clinic were primarily discretionary. Her involvement at the clinic was to exercise her discretion on behalf of the government in best discharging its duty to deliver population-based services according to her professional judgment. Dr. Howensteine has also met the requirements for public duty immunity. As medical director, Dr. Howensteine implemented collaborative practice arrangements for delivery of tuberculosis and other population-based services. Her directorship duties are not particularized to any patient, but instead to the public. Dr. Howensteine is immune from suit because her duties as medical director ran only to the public.

Statute of Limitations Does Not Commence From Technical Breach But From the Existence of a Practical Remedy

John Verbrugge hired ABC Seamless Steel Siding to install siding, guttering and downspouts on his home. The installation work was completed in April of 1994. Shortly after the work was completed, Verbrugge sent a list of eight to 10 complaints about the work and repairs were done. Within a month, Verbrugge noticed leaks and hired a professional, who determined that the leaks were caused by the manner in which the J-channel was installed. To prevent leakage, Verbrugge put in his own J-channel and re-caulked the windows. Verbrugge sent written complaints in May of 1994 and threatened legal action. Verbrugge later discovered problems with the gutters; instead of the water going into a downspout, the gutters would overflow. The weight and stress of this problem caused the gutter system to collapse in 1997. In July of 1999, Verbrugge filed suit against ABC. The trial court found that Verbrugge's claims were time-barred under the five-year statute of limitations found in §516.120, RSMo. The Court of Appeals reversed, however, in Verbrugge v. ABC Seamless Steel Siding, No. 26169 (Mo. App. S.D. 2005).

Under Missouri law, the applicable statute of limitations does not commence until the fact of damage is ascertainable. The fact of damage may be ascertainable even if the exact amount of damage cannot be verified, or if some additional damage may arise at a future time. The term "capable of ascertainment" has been interpreted to signify the moment plaintiff's damages are substantially complete. The case of Linn Reorganized School District v. Butler Mfg. Co., 672 S.W.2d 340 (Mo. banc 1984), adopts the view that Missouri's "capable of ascertainment" language recognizes that the limitations period does not commence from a technical breach, but from the existence of a practical remedy. Here, as a practical matter, the full extent of damages could not have been ascertained until the guttering collapsed in 1997. Although the "ascertainment" of when there is more than one item of damages under §516.100, RSMo, has created confusion, its purpose was to prevent a party from having to file suit before there could be a practical determination of the extent of damages. To deny Verbrugge's claim may force others in similar situations to bring premature actions that might not be necessary or create disputes as to future occurrences that may or may not occur. The past is often difficult to ascertain, much less the future. On these facts, as a matter of law, Verbrugge's claim was not time-barred.

Written Protest Must Be Made at the Time That the Tax or Fee is Paid

Ford Motor Company operates an automobile assembly plant in Hazelwood, Missouri. Hazelwood requires all manufacturing businesses to obtain an annual license and pay a license fee by March 16 of each year. During January of 2002, Ford requested an extension of time to file its license application. In a written response to the request for extension of time, Hazelwood advised Ford that it could obtain an extension until April 15 if it paid a reasonable estimate of its license fees, based on the prior year. On March 8, 2002, Ford paid Hazelwood $2,554,000, the same amount it had paid in 2001, but did not send a written protest with the payment. Hazelwood granted Ford an extension until April 15, 2002. On April 15, Ford submitted its license application, along with a protest letter, requesting a refund of $1,232,000. Hazelwood denied the request for a refund and Ford filed suit against Hazelwood on the grounds that the license fee violated the Commerce Clause. The trial court found that Ford's April 15 protest was timely and that Ford was entitled to a refund of $1,232,000. The Court of Appeals reversed, however, in Ford Motor Company v. City of Hazelwood, No. ED 83669 (Mo. App. E.D. 2005).

Section 139.031, RSMo, provides that a taxpayer desiring to pay any taxes under protest shall, at the time of paying such taxes, file with the collector a written statement of protest. This section applies to business license fees, and failure to timely file a protest precludes a refund of license fees. Section 139.031 must be strictly construed and enforced; it provides the taxpayer with an exclusive remedy, and failure to strictly comply with it bars recovery of the challenged taxes. The statutory purpose is to meet the needs for administrative control of the payment-protest-impounding sequence for collection of revenues paid under protest. The statute focuses on the actual payment of the funds as the event that triggers the requirement of concurrent protest.

Here, the timing of Ford's protest letter did not comply with the statute. Its payment on March 8 of the estimated fee based on the prior year's license fee was not accompanied by a protest. Payment of an estimated fee to secure an extension to file a license application is not a deposit, but a payment of a tax liability. Having failed to concurrently protest and pay, Ford did not comply with § 139.031, RSMo. The very nature of Ford's protest would have allowed it to file a protest with its payment of the estimated fee in March of 2002. Ford's argument that there can be no payment of taxes until the exact amount of tax liability has been assessed is not valid. Ford's April 15 protest was not timely under § 139.031, RSMo, because it did not accompany the March 8, 2002 estimated payment.

Foreign Judgment Entitled to Full Faith and Credit

In 1991, Maurice Gletzer filed suit in New York against Amos Harris to seek repayment of a loan. The summons and complaint were served on Harris by leaving a copy with the doorman at his hotel, and a copy was also mailed to Harris at his New York address. Harris did not respond and a $400,000 default judgment was entered against him by the Supreme Court of the City of New York. After the default judgment, Harris discussed settlement with Gletzer, but an agreement was never reached and the judgment was not paid. In 2000, Gletzer filed an action in Missouri seeking registration of the default judgment under Supreme Court Rule 74.14. Harris filed a motion to set aside the judgment, contending that the New York court lacked personal jurisdiction over him. The trial court found that the New York judgment was entitled to full faith and credit and the Court of Appeals affirmed in Gletzer v. Harris, No. ED 834367 (Mo. App. E.D. 2005).

Harris did not waive his lack of personal jurisdiction defense. A defendant is always free to ignore the judicial proceedings, risk a default judgment and then challenge that judgment on jurisdictional grounds in a collateral proceeding. A defendant who questions the validity of service giving a court personal jurisdiction over him does not have to raise the issue of personal jurisdiction in that court, and is allowed to raise it later when that judgment is filed in another state. If a party litigates the issue of jurisdiction in the initial court proceedings, that court's determination on the issue is conclusive upon that party and entitled to full faith and credit. Here, Harris never litigated the issue of jurisdiction before the New York court and, in fact, never appeared before the New York court.

Missouri is compelled to give full faith and credit to a judgment of another state unless the judgment of the rendering state is void for lack of jurisdiction over the person or subject matter, or is obtained by fraud. To be entitled to full faith and credit, the rendering court's exercise of jurisdiction must not only be permissible under the federal law of due process, but it must also be valid under the state law of the rendering court. A foreign judgment, which is regular on its face, is entitled to a strong presumption that the rendering court had jurisdiction over the parties and the subject matter of the suit. A party asserting the invalidity of a foreign judgment has the burden of overcoming the presumption of validity. An elementary and fundamental requirement of due process in any proceeding that is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Here, service comported with due process when the doorman at the hotel at which Harris resided was served and a copy of the summons and complaint was mailed to Harris at his New York address. The service was reasonably calculated to provide Harris with notice and an opportunity to respond. Harris did not meet his burden of overcoming the strong presumption that the New York court had jurisdiction over him.

Employee Who Was Injured While Leaving the Lunchroom Area Was Entitlted to Workers' Compensation Benefits

Mark DeVille was a maintenance worker for Hiland Dairy. His job required him to lift and crawl around equipment. One day, after eating lunch on the premises of Hiland Dairy, he "clocked back in" and was walking to his work area. He stopped to talk to another employee and when he turned to leave, his right knee popped. Prior to this occurrence, he had no problem with his right knee. Later, he had surgery for torn meniscus and filed a claim for workers' compensation benefits. Both the administrative law gudge and the Labor and Industrial Relations Commission awarded benefits to him and the Court of Appeals affirmed in DeVille v. Hiland Dairy Co., No. 26188 (Mo. App. E.D. 2005).

DeVille was engaged in activity incidental to his employment at the time he sustained his injury. DeVille's activity, i.e. clocking in on the employer's premises, walking toward his work area, stopping to converse with fellow employees and then turning to resume his post-lunch break walk to his work post, were incidental to his employment and there was no evidence that this was an idiopathic event. The accident arose out of employment and occurred in the course of employment. DeVille's twisting of his knee as he started toward his work area was a substantial factor in causing his injury and there was no evidence that the injury came from a hazard or risk that was unrelated to his employment activity. Moreover, DeVille was not "equally exposed" outside of his employment to the risk of twisting his knee as he turned to leave the fellow employee conversation site and walk to his work area.

Innkeeper Has Duty to Keep Premises Safe For Guests

Jonathan Stafford was a guest at the Drury Inn-Convention Center in downtown St.Louis. Two men whom he knew knocked on his door and he let them in his room. The two men then assaulted Stafford, stabbed him several times and robbed him of his money. A housekeeper at Drury found Stafford and immediately sought medical assistance for him. Stafford filed suit against Drury, alleging that it was negligent in ensuring the safety of its guests on the premises. The trial court granted summary judgment to Drury, but the Court of Appeals reversed in Stafford v. Drury Inns, Inc., No. ED 84555 (Mo. App. E.D. 2005).

Businesses, generally, do not owe a duty to protect their invitees from criminal activity. There are, however, two exceptions to this rule: (1) the special relationship test, and (2) the special circumstances test. While the special circumstances exception deals with the foreseeability of crimes based on past incidents to create a duty of care, the special relationship exception creates a duty based solely on the position of the parties. The law imposes liability when a special relationship between the business and the invitee exists, such that the plaintiff entrusts him or herself to the protection of the defendant and relies upon the defendant to provide a place of safety. The relationship between an innkeeper and its guests imposes affirmative duties upon the innkeeper in the protection of persons and property. As an innkeeper, Drury has a duty to keep the premises safe. Even though Stafford voluntarily let the assailants into his room, that did not negate Drury's duty to provide a safe place and resolve whether Drury was negligent in failing to provide the proper security measures within the hotel. The facts put forth by Drury seem to go to the issue of proximate cause, which is generally a question for the jury. Drury was not entitled to judgment as a matter of law.

Material Supplier Was Entitled to Mechanic's Lien Even Though the Materials Were Later Removed Due to Defective Installation By the Contractor

Bates County Redi-Mix supplied concrete for a basement foundation built by Windler Backhoe Services on property owned by Michelle Cole. After the foundation was constructed, it was determined that the basement walls were out of plumb and bowed significantly. These deficiencies were due to errors made by the contractor, not due to problems with the concrete materials delivered by Bates. Cole determined that the deficiencies could not be corrected and the foundation was completely demolished and removed from her property. Cole then hired another contractor who built a replacement foundation. When Bates was not paid, it filed a mechanic's lien and suit to enforce the mechanic's lien. The trial court found that Bates was not entitled to a mechanic's lien because the concrete it supplied was completely removed from the property. In a case of first impression, the Court of Appeals reversed in Bates County Redi-Mix, Inc. v. Windler, No. W.D. 63152 (Mo. App. W.D. 2005).

The Missouri Mechanic's Lien Statute is remedial in nature and should be construed as favorably to mechanics and materialmen as its terms permit. Its purpose is to guarantee effective security to those who furnish labor and materials for the improvement of property. In order for a material supplier to assert a lien against property, those materials must have "actually entered" or "went into" or "were used in" the construction of the structure. To be "used in" the property, it is not essential that the supplied materials become a permanent part of the construction. If, however, the supplied materials do not become a permanent part of the structure, then a mechanic's lien is available only if the use or consumption of those materials was necessary for completion of the finished structure.

The supplier stands in a far different position than a contractor; he has no contractual relationship with the owner. The supplier, unlike the contractor, cannot contractually allocate the risk of loss and would likely be unable to insure most risks, since he parts with his interest in the materials once they are sold and delivered. Further, unless the materials themselves are defective, the materialman is totally innocent and removed from the malfeasance of the contractor (who is chosen by the owner) in the use of the materials. The owner is in a better position to see that a contractor performs his job properly than is the one who supplies the material. Given the purpose of the mechanic's lien law to encourage suppliers to extend credit to the land for improvements to be made, the proper result is that the innocent materialman be entitled to a mechanic's lien, even for defectively installed materials that are subsequently removed from the property. Where a supplier has provided construction materials, which are consumed in the construction process, the supplier is entitled to a mechanic's lien on the property, even if those materials are subsequently removed from the property because they were defectively installed by a contractor.

Post-Judgment Interest Accrues From Date of Final Judgment, Not From Date of Jury Verdict

Justine Bolden was killed when struck by a truck of BFI Waste Systems. A wrongful death suit was filed by Bolden's family. On June 14, 2001, a jury awarded the plaintiffs $1.9 million, allocating 55% of fault to BFI. A number of post-trial motions were filed and on December 6, 2001, the trial court entered judgment in the case. An appeal was taken and the judgment was affirmed. Thereafter, BFI satisfied the judgment and paid post-judgment interest accruing from December 6, 2001. Plaintiffs sought an order of the trial court requiring BFI to pay post-judgment interest as of June 14, 2001, the date of the jury verdict. The trial court denied plaintiff's request and the Court of Appeals affirmed in Patrice Johnson v. BFI Waste Systems of North America, Inc., No. E.D. 84343 (Mo. App. E.D. 2005).

Under § 408.040, RSMo, interest shall be allowed on all money due upon any judgment or order of any court from the day of rendering same. Post-judgment interest is awarded on the theory that it is a penalty for delayed payment of the judgment. The statute does not provide that interest is due upon the jury's verdict, but rather specifies that the interest shall be allowed on money which is due upon a judgment. The statute's focus is clearly upon identifying the judgment that creates a debt or right to collection. In this case, the judgment that bears interest is not the June 14 verdict, but rather the December 6 judgment rendered by the trial court, which was the final and appealable judgment. A judgment is entered when a writing signed by the judge and denominated "judgment" is filed. Missouri statutes define judgment as the final determination of the rights of the parties in an action. The trial court rendered its judgment on December 6 and post-judgment interest ran from that date, not from June 14 - the date of the verdict.

Public Hearing Before City Planning Commission Complied With Zoning Statutes

Apex Management filed its application with the City of Parkville to rezone property it owned from residential to planned commercial. Notice of the hearing on this application by the city planning commission was published 19 days before the scheduled public hearing and the city also mailed notice of the hearing by certified mail to property owners within 185 feet of the boundaries of the Apex property. Property owners testified at the hearing against Apex's rezoning application and the planning commission recommended that the Parkville Board of Aldermen deny the application. No notice of hearing was published for the rezoning application in connection with the Board of Aldermen meeting at which the application was considered, and the Board of Aldermen passed an ordinance rezoning the Apex property. Several citizens of Parkville filed suit, challenging the rezoning on the grounds that § 89.050, RSMo, required a public hearing before the Board of Aldermen. The trial court granted summary judgment to Parkville and the Court of Appeals affirmed in Moore et al v. City of Parkville, No. W.D. 63692 (Mo. App. W.D. 2005).

Section 89.050, RSMo, grants municipal legislative bodies the power to determine the manner in which zoning regulations shall be established and also provides that notice and a hearing are necessary prerequisites to the valid enactment of a zoning ordinance. That statute requires a public hearing on zoning applications, with notice of the hearing to be published in a paper of general circulation in the municipality at least 15 days prior to the hearing. Enactment of a zoning ordinance must strictly comply with the statutorily prescribed notice and hearing requirements of the statute. The Parkville zoning ordinances provide a public hearing before the planning commission, with notice of that public hearing to be published at least 15 days prior to the hearing.

The plain language of § 89.050, RSMo, does not require that the public hearing prior to enactment of a zoning ordinance be held by the legislative body. To hold otherwise would require the court to read into the statute the requirement of a public hearing "before the City's legislative body." Parkville ordinances require a public hearing before the planning commission. The purpose of the notice and public hearing requirements of §§ 89.050 and 89.060 is to afford interested persons an opportunity to be heard regarding a proposed zoning ordinance. The hearing before the Parkville Planning Commission satisfied the hearing requirements of § 89.050, RSMo.

There is little support for the proposition that a neighboring property owner has a constitutionally protected property interest in continuing the existing zoning classification of nearby property. Zoning and rezoning ordinances are legislative, rather than quasi-judicial acts; a zoning ordinance is presumed valid. While notice and hearing on applications to rezone are required by §§ 89.050 and 89.060, RSMo, they are not constitutionally required. Due process requires that a zoning ordinance bear a substantial relationship to health, safety, morals or public welfare, and the constitutional standard is essentially one of reasonableness. Here, there is no claim that the Parkville ordinance rezoning the Apex property is unreasonable.