W. Dudley McCarter
Behr, McCarter & Potter
St. Louis
Robert Driscoll, an inmate at Missouri Training Center for Men in Moberly, was charged with capital murder for the stabbing death of a corrections officer. His conviction in the first trial was reversed by the 8th Circuit Court of Appeals, and he was again convicted of capital murder in his second trial. During the second trial, evidence from one of the state's witnesses, Jimmie Jenkins, was admitted through the reading of his testimony at the first trial, since he had died prior to the second trial. In his testimony, Jenkins testified that Driscoll was a member of a prison gang known as the Aryan Brotherhood, an organization for white men, that required the killing of a black man for membership. The prosecutor made no reference to this testimony in the guilt-phase closing arguments, but did during the punishment phase. Driscoll was convicted by the jury of capital murder and sentenced to death. The Supreme Court of Missouri reversed and remanded in State of Missouri v. Driscoll, No. SC82402 (Mo. banc 2001).
Evidence of uncharged misconduct is inadmissible if it is offered for the purpose of showing a defendant's propensity to commit crimes. The logical relevance of the Aryan Brotherhood evidence was tenuous at best and the prejudicial effect of the evidence far outweighed its probative value so that it had no legal relevance. The Aryan Brotherhood evidence enabled the state to portray Driscoll as a person of bad character, who advocated violent "white power" racism and who chose to associate with an inmate gang professing that belief and whose "way of life" was to "kill and murder." Evidence of this sort is exactly that which the rule against propensity evidence prohibits, and its admission in this case was an abuse of discretion. The judgment of guilt can be affirmed only if it is shown that the error was harmless beyond a reasonable doubt. Ultimately, the question is whether the jury would have convicted Driscoll in the absence of the Aryan Brotherhood evidence. Despite the fact that the prosecutor made no reference to the evidence in the guilt-phase closing argument, it was highly prejudicial and may well have been sufficient to convince one or more of the jurors to convict, rather than acquit. The court cannot hold that the admission of this improper evidence was harmless beyond a reasonable doubt.
All Claims Arising From Health Care Services Covered By Two Year Statute of Limitations
Felicia Robinson was injured when the vehicle driven by Rosemary Schmidt crossed the centerline of the road and struck Robinson's vehicle head-on. Prior to the accident, Schmidt was treated at Lafayette Regional Health Center for headaches. She had been given an intravenous dose of 5 mg. of Compazine. Compazine is known to cause drowsiness and dizziness. After receiving the medication and without alerting the hospital personnel, Schmidt left the emergency department; she had not been discharged, nor had she received any warnings regarding the side effects of the treatment. The accident occurred in November of 1993. In 1997, Robinson filed suit against Lafayette Regional Health Center, alleging that it was negligent in failing to warn Schmidt not to drive while under the influence of Compazine. The trial court granted summary judgment to Lafayette Regional and the Supreme Court of Missouri affirmed in Robinson v. Health Midwest Development Group, No. SC 83645 (Mo. banc 2001).
Robinson's claim was barred by the two-year statute of limitations for medical negligence actions. Section 516.105, RSMo, states that all actions against physicians, hospitals, or other entities providing health care services shall be brought within two years from the date of the occurrence where damages are sought for negligence related to health care. All of Robinson's allegations related to negligent medical treatment in failing to appropriately inform, assess, and monitor Schmidt in conjunction with the treatment she received and her subsequent unannounced exodus from the hospital while in a medically-created impaired state. The clear and unambiguous language of §516.105 requires actions based in negligence that are brought against health care providers in relation to health care services, to be brought within two years from the date of the alleged negligent act. Any act or omission related to the care, custody or treatment of a patient are covered by this statute. Because Robinson's suit was fundamentally for medical negligence, the two-year statute of limitations applies, rather than the five-year statute of limitations for general negligence actions.
Physician Does Not Have Duty to the General Public
Craig Virgin was injured when Lauretta Arnold drove on the wrong side of the road and collided head-on with Virgin's vehicle. Arnold had a long history of psychiatric illness. She had numerous psychiatric hospitalizations, had expressed a death wish to her psychiatrist and had many traffic violations. Virgin filed suit against several of Arnold's mental healthcare providers, alleging that they were negligent in failing to warn Arnold's family, the police, and the Department of Revenue that Arnold should not drive a motor vehicle and that her access to motor vehicles should be prevented. The trial court granted the motions to dismiss filed by the healthcare providers and the Court of Appeals affirmed in Virgin v. Hopewell Center, et al, No. E.D. 78857 (Mo. App. E.D. 2001).
A mental healthcare provider does not have a duty to unidentified persons for the acts of a patient. A psychiatrist does not have an obligation to the public generally that will support tort liability for negligence. In this case, there are no readily identifiable persons to whom the healthcare providers have a duty, and to impose such a duty on them to warn a class of potential victims (such as other motorists like Mr. Virgin) runs contrary to Missouri law. Where a mental healthcare provider knows, or should know, that a patient presents a serious danger to a readily identifiable victim, the provider has a duty to warn such victim, but has no such duty where there are no readily identifiable persons to warn.
Furthermore, finding that a physician has no duty here furthers the public interest in maintaining the physician-patient privilege. The policy behind this privilege is to protect the patient by allowing her to make full disclosure without fear that the information will be used against her. The purpose of the privilege is to enable the patient to secure complete and appropriate medical treatment by encouraging candid communication between the patient and the physician, free of fear of the possible embarrassment and invasion of privacy engendered by an unauthorized disclosure of information. Imposing a duty on the healthcare providers here would erode, to say the least, the physician-patient privilege, as well as subvert the purpose and policy behind it.
Kansas Doctor Not Subject to Personal Jurisdiction in Missouri Since the Medical Care Was Provided in Kansas
The Lindleys filed a medical negligence action against Michael Nelson, a Kansas physician. The Lindleys alleged that Dr. Nelson was negligent in monitoring medications prescribed for Mr. Lindley. Dr. Nelson filed a motion to dismiss for lack of personal jurisdiction. His affidavit in support of the motion stated that all of the medical services he provided to Mr.Lindley took place in Kansas. In response, the Lindleys stated that Dr. Nelson was licensed to practice medicine in Missouri and that their payments for Dr. Nelson's services were sent from Missouri. The trial court sustained Dr. Nelson's motion to dismiss and the Court of Appeals affirmed in Lindley v. Midwest Pulmonary Consultants, No. W.D. 59619 (Mo. App. W.D. 2001).
When a defendant raises lack of personal jurisdiction, the burden shifts to the plaintiff to make a prima facie showing of jurisdiction by establishing that: (1) the action arose out of an activity covered by the long-arm statute, § 506.400 RSMo., and (2) the defendant had sufficient minimum contacts with Missouri to satisfy due process. Here, it is undisputed that all medical care provided by Dr. Lindley took place in Kansas. Even though the fee for his services was paid in Missouri, the fee was for services rendered in Kansas; nothing done in Kansas was intended to have an effect in Missouri. The fact that Dr. Nelson had a Missouri medical license was not sufficient to establish the conduct of business by him in Missouri. Moreover, there was no showing that Dr. Nelson consulted with any Missouri physician in the care and treatment of Mr. Lindley. The crux of Mr. Lindley's cause of action is for medical negligence; all of the alleged acts of negligence took place in Kansas. There was no action in Missouri that could be the basis of a lawsuit against Dr. Nelson in Missouri.
When It Comes to Counter-claims, Compulsory Means Compulsory (Use It or Lose It)
Meramec Valley Bank made loans to Bianco Kawasaki, which were secured by Bianco's inventory. The bank filed suit against Bianco, alleging that it had defaulted on the notes and that it was entitled to replevin the collateral pledged as security for the notes. After negotiations between Bianco and the bank broke down, the bank completed its replevin of the collateral. Then, Bianco filed a separate suit against the bank alleging fraud and misrepresentation by the bank involving the bank's replevin of Bianco's assets and the bank's interference with the sale of the Bianco dealership. In the bank's answer to Bianco's fraud suit, the bank did not assert that Bianco's suit should have been filed as a compulsory counterclaim in the replevin action. The bank obtained a default judgment in the replevin action but, on appeal, the default judgment was set aside and the case was remanded. Thereafter, in the trial of the fraud suit filed by Bianco, the jury awarded Bianco $675,000 against the bank. The Court of Appeals reversed, however, in Joel Bianco Kawasaki v. Meramec Valley Bank, No. E.D. 77624 (Mo. App. E.D. 2001).
The compulsory counterclaim rule, Rule 55.32, compels a party to state any claim it has against its adversary that arises out of the transaction or occurrence that is the subject matter of the suit. The purpose of the rule is to discourage separate litigation covering the same subject matter and require adjudication in the same action; it brings together all logically-related claims into a single suit through the penalty of precluding the later assertion of omitted claims. The transaction element of the rule is to be applied in its broadest sense, to encompass all claims connected by a logical nexus. The term "transaction" may encompass a series of occurrences, and includes all facts and circumstances out of which the injury complained of arose. The term is broadly applied and includes all logically-related claims. Given the gist of the fraud action – that the bank made misrepresentations during negotiations involving the pending replevin action – it is obvious that the fraud claim is a compulsory counterclaim to the earlier-filed replevin action.
Even though the alleged mis-representations by the bank may have occurred after the replevin action was filed against Bianco, Rule 55.32 contains no safe harbor. By the date Bianco's answer was due in the replevin action, damage resulting from the bank's alleged fraud was capable of ascertainment. The consequence of violating the rule is dire; a failure to plead a compulsory counterclaim bars a party from bringing a later independent action on that claim. The sanction for violation of the rule is preclusion of the omitted compulsory counterclaim – use it or lose it. Moreover, even though the bank failed to assert the rule's violation in its pleading, the preclusive effect of the compulsory counterclaim rule is not subject to waiver. The trial court had no jurisdiction to enter judgment for Bianco on the jury verdict and the judgment is vacated. Bianco may, however, seek leave of court to assert its fraud claim as a counterclaim in the still-pending replevin action.
Financial Status of a Party is Relevant When Punitive Damages Are Sought
United Missouri Bank filed suit against Michael Helt to recover an unpaid loan that he personally guaranteed. Helt filed a counterclaim against UMB and several UMB employees alleging fraud and prima facie tort and seeking punitive damages. Helt requested production of income and financial information regarding the two UMB employees. These requests were objected to and Helt filed a motion to compel their production. The trial court ordered the financial records delivered to the court, where they would be kept under seal until Helt had made a submissible case on punitive damages. Helt challenged the trial judge's order by seeking a writ of prohibition, which was issued by the Court of Appeals in State of Missouri ex rel. Helt v. O'Malley, No. W.D. 59298 (Mo. App. W.D. 2001).
It is well settled that when a plaintiff seeks punitive damages against a defendant, evidence of the defendant's financial status is both relevant and admissible. Discovery of past financial information is often helpful in determining a party's present financial status. A plaintiff seeking discovery of financial information in support of a punitive damage claim should be afforded an adequate opportunity to examine those materials prior to trial. The trial court abused its discretion in denying Helt access to the requested financial records until he made a submissible case on his punitive damage claim. Helt was entitled to review the requested documents, as they are directly relevant to his punitive damage claim. To the extent that the privacy interests of the two employees could be compromised by disclosure of that information, the trial court may use a protective order placing reasonable restrictions upon disclosure of that information beyond Helt and his counsel.
City's Rezoning of Property For Operation of Asphalt Plant Was Arbitrary and Capricious
The Stampers owned significant property northwest of Kansas City International Airport. They leased portions of their land to a quarry operation and other portions to Bowen Construction, which operated an asphalt plant. Bowen desired to relocate its asphalt plant to another portion of the Stamper property so that it could be closer to the quarry. The 8.5-acre tract to which Bowen desired to relocate its asphalt plant was zoned GP-7 (agriculture and low density housing). Bowen filed an application with the City of Kansas City to rezone that tract to GP-1 (general industry) so that it could operate the asphalt plant on that site. The city planner recommended approval of the rezoning requested by Bowen Construction, but the city planning commission recommended denial. The city council, however, approved the rezoning, and a neighboring property owner filed suit challenging the rezoning. The trial court found that the rezoning by the city was arbitrary and capricious and the Court of Appeals agreed in Fairview Enterprises v. City of Kansas City, No. W.D. 58947 and 58952 (Mo. App. W.D. 2001).
The exercise of zoning power is a legislative function. Upon review, a court may reverse a legislative action only if arbitrary and unreasonable, meaning that the decision is not fairly debatable. A two-step analysis must be conducted when determining the validity of a zoning provision. First, the court determines whether the challenging party has presented sufficient evidence to rebut the presumption that the present zoning is reasonable. Then, if the presumption has been rebutted, the court determines whether the government's evidence establishes that the reasonableness of the zoning is fairly debatable. Neighboring landowners who have relied on the existing zoning classification of a parcel proposed for rezoning have an interest in the perpetuation of such scheme, unless a change is compelled by the public good. At trial, several property owners testified that the smoke, odor and traffic associated with the asphalt plant would negatively affect their use and enjoyment of their property and that the plant would significantly lower the values of their property. A real estate expert testified about the decrease in value of the neighboring properties that would be caused by the asphalt plant and an urban planner testified that the rezoning of the 8.5 acres was improper spot zoning. The city planner testified that she had made no determinations related to the smoke, fumes, odor or other health issues in making her recommendation, had not considered traffic issues, nor had she considered the negative impact on the value of neighboring properties. Thus, her testimony was insufficient to establish that the rezoning was fairly debatable. Similarly, testimony from Bowen Construction that asphalt plants were necessary to build roads in the community was also insufficient. The evidence established that the private detriment to the surrounding property of allowing the 8.5 acres to be rezoned for use as an asphalt plant outweighed any public interest in allowing the rezoning. Moreover, the reasonableness of allowing the rezoning for the asphalt plant was not fairly debatable and the city's actions were arbitrary and capricious.
Complaint to Municipality Was Insufficient to Support Malicious Prosecution or Abuse of Process Action
Mr. & Mrs. Cleaves complained to Kansas City zoning authorities that their neighbor, James Teefey, was illegally dumping grass clippings and debris on his property. Kansas City officials investigated the Cleaves' complaint and issued violations to Teefey. Teefey appealed the violations to the Board of Zoning Adjustment, which conducted a hearing. An attorney for the Cleaves participated at the hearing. The board affirmed the violations and Teefey appealed to circuit court. The Cleaves intervened in the circuit court proceeding. The circuit court affirmed part of the Board's decision, but also reversed part of it. Teefey then sued the Cleaves for malicious prosecution and abuse of process. The circuit court granted the Cleaves' motion for summary judgment and the Court of Appeals affirmed in Teefey v. Cleaves, No. WD 59032 (Mo. App. W.D. 2001).
To establish a claim for malicious prosecution, six elements must be proven: (1)commencement of an earlier lawsuit against plaintiff, (2) instigated by defendant, (3) that terminated in plaintiff's favor, (4) that lacked probable cause, (5) that was motivated by defendant's malice, and (6) that resulted in damage to plaintiff. No Missouri court has recognized a malicious prosecution claim based on an administrative proceeding. Moreover, the first element of a malicious prosecution action, commencement of an earlier lawsuit against the plaintiff, cannot be met. Even if a malicious prosecution action extended to quasi-judicial, administrative agency proceedings, Teefey could not satisfy the first element of a malicious prosecution action because the Cleaves simply complained to the city and the city issued a violation notice to Teefey. The Cleaves did not file a lawsuit; Teefey filed the suit challenging the city's violation notice. Also, Teefey's abuse of process claim fails for similar reasons. To establish abuse of process, Teefey was obligated to prove: (1) the defendants made an illegal, improper, perverted use of process, a use neither warranted nor authorized by the process; (2) for an illegal purpose; and (3) damage resulted. Here, the Cleaves did nothing illegal. They merely made a report to the appropriate governmental agency.
Where Board of Adjustment Decision is Supported By Substantial and Competent Evidence, Court Cannot Substitute Its Judgment For That of the Board
Several property owners sought a variance from an ordinance of the City of Creve Coeur that required buildings in the City's core business district to have 50% of the building elevation located 15 feet from the right-of-way. The purpose of the ordinance was to foster a pedestrian-oriented streetscape by encouraging the placement of buildings adjacent to the street, with parking lots in the rear. The property owners requested a variance for the construction of a new commercial office building that would be 249 feet from the street. The board of adjustment voted 3-2 to approve the variance, which constituted a denial because four affirmative votes are required for approval by § 89.090 RSMo. The property owners appealed to the circuit court, which reversed the board's decision. The Court of Appeals reversed the circuit court, however, and affirmed the board's denial of the variance in State of Missouri ex rel. Sander v. Board of Adjustment of the City of Creve Coeur, No. ED 78934 (Mo. App. E.D. 2001).
The court's review of a board of adjustment decision is limited to determining whether the decision is supported by competent and substantial evidence on the whole record. In so doing, the court views the evidence, and the reasonable inferences from the evidence, in the light most favorable to the board's decision. Here, the reports and testimony of the city staff established that a granting of the variance requested would violate the spirit and intent of the city's zoning ordinance. The city's evidence also established that the requested variance did not arise from a condition unique to the property or one that was not ordinarily found in the same zoning district. The evidence demonstrated that there were no site characteristics that prevented the site from being developed in accordance with the required building set-back. Because the presentation by the city at the board hearing established substantial and competent evidence supporting the board's findings, the court does not consider whether, as the property owners contended, other evidence supported a contrary determination. If substantial and competent evidence supports the board's findings, the court may not substitute its discretion for the board's discretion, even if different findings are permissible.
Ten-Year Statute of Limitation Applies to Inverse Condemnation Claims
The Shade family owned property adjacent to Missouri Highway 210 in Ray County. In 1987, the Missouri Highway & Transportation Commission constructed a new portion of Highway 210 that exceeded the elevation of the old highway. In 1993, 1996 and 1998, the Shade property was flooded. In 1999, the Shades filed suit against the Missouri Highway & Transportation Commission under a theory of inverse condemnation, alleging that the reconstruction of Highway 210 materially changed the flow of surface water and caused their property to be flooded. The trial court granted the commission's motion for summary judgment and dismissed the suit on the grounds that it was barred by the five-year statute of limitations. The Court of Appeals reversed, however, in Shade v. Missouri Highway & Transportation Commission, No. W.D. 58652 (Mo. App. W.D. 2001).
Article I, §10 of the Missouri Constitution provides that no person shall be deprived of property without due process of law and Article I, §26 provides that private property shall not be taken for public use without just compensation. Both the Fifth Amendment and Fourteenth Amendment to the United States Constitution prohibit the government from taking private property without due process and without just compensation. No limitation period is contemplated by either the United States or Missouri Constitutions. The statute of limitations in real property inverse condemnation cases must not be shorter than that required for the entity with the power of eminent domain to obtain a prescriptive easement on the property. Since the time required to obtain a prescriptive easement is 10 years, the statute of limitations for real property inverse condemnation actions must also be 10 years. To hold otherwise would be to allow the taking entity to effectively gain title short of the prescriptive period.