Courts Bulletin - 5-Apr
The latest court decisions are summarized each month in the Courts Bulletin. This publication keeps Missouri Bar members current with rulings in selected areas of the law. Selected federal court opinion summaries, new or amended rules of court and other matters of interest to practitioners are also included from time to time. A panel of volunteer lawyers, all authorities in their respective subject areas, prepare the case summaries.

In this Issue

Administrative Hearing Commission Causes for license discipline defined. [Mark M. Tendai, M.D., Appellant v. Missouri State Board of Registration for the Healing Arts, Respondent], No. 86110 (Mo. banc, April 5, 2005), Wolff, J. Full Summary and Other Cases

Administrative/Constitutional Law Any procedure in which the law requires a hearing is a contested case. [Furlong Companies, Inc., Respondent v. The City of Kansas City, Missouri, Appellant], No 63248 (Mo. App., W.D., February 22, 2005), Holliger, P.J. Full Summary and Other Cases

Attorney Discipline 1) Attorney's failure to properly handle clients' lawsuit, coupled with dishonest answers to clients about progress of the case and other statements about the matter; 2) incompetent handling of appeal resulting in dismissal for failure to follow rules of appellate practice; and 3) failure to get the contingent fee agreement reduced to writing, warranted discipline in the form of suspension from practice for one year with leave to apply for reinstatement after that year period provided, before seeking reinstatement, attorney demonstrates that he has obtained a minimum of $250,000 in malpractice insurance, completed a continuing legal education course in office management, civil procedure and ethical practice, prepared and submitted an office management plan, and retaken and passed the multi-state professional responsibility examination. [In re James F. Crews], No. 86212 (Mo. banc, April 5, 2005), per curiam.} Full Summary and Other Cases

Civil Practice & Procedure Service of process on dissolved corporation must comport with statutory requirements. [Deborah A. Finnigan, Plaintiff/Respondent v. King Investments, Inc., d/b/a Knights Inn, Defendant/Appellant], No. 26309 (Mo. App. S.D., March 25, 2005), Parrish, P.J. Full Summary and Other Cases

Construction Law In an action by a concrete supplier to enforce its mechanic's lien, the trial court found that the supplier was not entitled to a lien because its concrete was not incorporated into the final structure. Concrete supplier appealed and the court of appeals reversed. [Bates County Redi-Mix, Inc., Appellant v. Loren D. and Debbie K. Windler d/b/a Windler Backhoe Services, Defendant, Michelle L. Cole, Respondent; and National City Mortgage, d/b/a Commonwealth United, Respondent], No. 63152 (Mo. App. W.D., February 22, 2005), Holliger, J. Full Summary and Other Cases

Criminal Law Ineffective assistance of counsel for urging the jury to convict of one of the counts and failing to present evidence of juror misconduct. [John Dorsey, Appellant v. State of Missouri], Respondent, No. 63217 (Mo. App., W.D., March 8, 2005), Smart, J. Full Summary and Other Cases

Environmental & Energy Law Does a utility company have the right to retain incentive proceeds realized from an incentive program? [State of Missouri ex rel. Laclede Gas Company, Respondent v. Public Service Commission of the State of Missouri, Appellant], No. 63563 (Mo. App. W.D., March 1, 2005), Howard, P.J. Full Summary and Other Cases

Family Law Marital property "gifted" to one spouse does not necessarily make it non-marital property. [Barbara Jo Hoberock, Respondent v. Gregory Eugene Hoberock, Appellant], No. 84024 (Mo. App. E.D., March 8, 2005), Mooney, J. Full Summary and Other Cases

Insurance Law Indemnification agreement controls priority between liability insurers. [Federal Insurance Company, Plaintiff/Respondent v. Gulf Insurance Company, Defendant/Appellant], No. 84501 (Mo. App., E.D., March 8, 2005), Crane, J. Full Summary and Other Cases

Juvenile Law (1) Petition for termination of parental rights is a "supplemental petition" under Rule 126.01(c) and, thus, there is no right to a change of judge after the filing thereof. (2) Foster care 15 of the most recent 22 months is a filing trigger and not an independent ground for termination of parental rights. (3) The trial court erroneously terminated parental rights for parental unfitness where parental unfitness was not pleaded. (4) Where father provided substantial money, grocery gift cards, daycare expenses and health insurance and provided several toys to the child, termination for repeated and continuous neglect for failure to provide support is not supported by sufficient evidence. (5) Where father has completed his service plan and thereafter remains in substantial compliance, termination cannot be had for failure to rectify where there is no other aggravating factor supported by substantial evidence. (6) The fact that father would have had assistance in raising the child from another couple is irrelevant because nothing requires a parent to prove that he or she can raise a child alone to avoid a termination of parental rights. [In the Interest of S.M.H., a Minor. Missouri Department of Social Services, Division of Family Services, and Juvenile Officer, Respondents, v. T.H., Jr., Appellant], No. 86440 (Mo. banc, March 15, 2005), Stith, J. Full Summary and Other Cases

Labor Law - Federal United States Supreme Court holds disparate impact claims under the ADEA are viable. [Azel Smith et al. v. City of Jackson, Mississippi], 03-1160 (Mar. 30, 2005). Full Summary and Other Cases

Workers´ Compensation Claimant sustained a compensable injury when he pivoted on his foot, at which time he heard and felt his knee pop. [Mark Deville, Claimant-Respondent, v. Hiland Dairy Company, Employer-Appellant], No. 26188 (Mo. App. S.D., January 28, 2005), Shrum, J. Full Summary and Other Cases