Courts Bulletin - 6-Dec
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/Constitutional Law Defendant held to be not indigent. State of Missouri, Respondent v. Mark E. Lewis, Appellant, No. 86961 (Mo. App. E.D., October 31, 2006), Gaertner, Sr., J. Full Summary and Other Cases

Civil Practice & Procedure Dismissal for failure to prosecute reversed based on due process concerns. Lonnie Snelling, Appellant Acting Pro Se v. Samuel Beck and Cathy Beck, et al., Respondents, No. 87775 (Mo. App. E.D., November 21, 2006), Norton, P.J. Full Summary and Other Cases

Criminal Law Sodomy subject to three-year statute of limitations under rule of lenity. State of Missouri, Respondent, v. Thomas Graham, Appellant, No. 87424, (Mo. banc, November 7, 2006), Teitelman, J. Full Summary and Other Cases

Elder Law The Omnibus Nursing Home Act did waive nursing home districts' sovereign immunity; nursing home nurses who were following a doctor's specific orders are not protected by official immunity, as those acts are ministerial and not discretionary; there is no need for expert testimony when a defendant's own testimony establishes the standard of care; and there is no plain error without a showing of manifest injustice or miscarriage of justice. Deborah Rush, et al., v. Senior Citizens Nursing Home District of Ray County, Missouri, d/b/a Shirkey Leisure Acres, et al., No. 65474 (Mo App. W.D., November 21, 2006), Howard, C.J. (See also: Tort Law) Full Summary and Other Cases

Employee Benefits Husband's petition for declaratory judgment failed to state a claim upon which relief can be granted where the proper petition was to invoke the court's continuing jurisdiction over a QDRO. Brenda Ann Shelton, Respondent v. Edward Palmer Shelton, Appellant, No. 66148, (Mo. App. W.D., September 26, 2006), Smart, Jr., J. (See also: Family Law) Full Summary and Other Cases

Family Law Limiting discovery sanctions: Case law for making access to discovery more difficult without penalty. John D. Cosby, Jr. Petitioner/Appellant v. Barbara N. Cosby, Respondent/Respondent, No. 87059 (Mo. App. E.D., September 26, 2006), Hoff, J. Full Summary and Other Cases

Health and Hospital Law The Health Care Quality Improvement Act (HCQIA), 42 U.S.C. §11101, et seq. provides immunity to an individual for informing the hospital administration of the possibility that a physician may have performed medically unnecessary procedures. Gateway Cardiology, P.C., Nizar Assi, and Bassam Al-Joundi, Appellants, v. William Wright, M.D., Respondent, No. 87226 (Mo. App. E.D., October 31, 2006), Cohen, J. (See also: Tort Law) Full Summary and Other Cases

Insurance Law Homeowner's policy provides no coverage for claim of negligent misrepresentation in sale of home. Shelter Mutual Insurance Company, Respondent v. Glen Eugene Ballew, et al., Appellants, Nos. 65618 and 65650 (Mo. App. W.D., October 24, 2006), Howard, P.J. (See also: Property Law) Full Summary and Other Cases

Juvenile Law Termination of parental rights requires strict and literal compliance with the statutes. In the Interest of: C.W., No. 87800 (Mo. App. E.D., September 26, 2006), Baker, J. Full Summary and Other Cases

Labor Law Findings of fact which are inconsistent with the record requires reversal and remand. Milton Berwyn, Jr., Claimant/Appellant v. Lindenwood Female College, Employer/Respondent and Division of Employment Security, Respondent, No. 87916 (Mo. App. E.D., November 7, 2006), Sullivan, J. Full Summary and Other Cases

Labor Law - Federal The Eighth Circuit holds information regarding a flight attendant's use of depression and anxiety medications failed to show the airline regarded the flight attendant as disabled under the Americans with Disabilities Act (“ADA”). Jake Pittari, Appellee, v. American Eagle Airlines, Inc., Appellant, 05-4181 (8th Cir., November 9, 2006), Riley, C.J. Full Summary and Other Cases

Local Government Supreme Court establishes new test by which to determine the viability of the presumption that an open-ended population classification is general law and, thus, the legality of that classification as special law under Missouri Constitution Article III, Section 40(30). Jefferson County Fire Protection Districts Association, et al., Appellants v. Matt Blunt, Jeremiah Nixon, et al., Respondents No. 87239 (Mo. banc, November 21, 2006), Russell, J. (See also: Administrative/Constitutional Law) Full Summary and Other Cases

Property Law Homeowners insurance carrier is not obligated to cover negligent misrepresentation by a home seller. Shelter Mutual Insurance Company, Respondent, v. Glen Eugene Ballew, et al., Appellants, No. 65618 (consolidated with No. 65650) (Mo. App. W.D., October 24, 2006), Howard, P.J. (See also: Insurance Law) Full Summary and Other Cases

Public Service Commission Missouri Constitution, Article V, Section 18's requirement of competent and substantial evidence “does not apply to an administrative case in which a hearing is not required by law.” Thus, the court of appeals determined that it erred in its previous order when it directed the Public Service Commission to make findings of fact. State ex rel. Public Counsel, Appellants, v. Public Service Commission, Appellant, and Sprint Missouri, Inc., Respondent/Intervenor, Nos. 66478, 66479, and 66480 (Mo. App. W.D., November 7, 2006), Spinden, J. Full Summary and Other Cases

Missouri Taxation Law and Practice Deskbook Update Use tax — Manufacturing exemption denied because equipment purchased not used directly in manufacturing a product intended for sale. Emerson Electric Co., Appellant, v. Director of Revenue, Respondent, No. 87146 (Mo. banc, November 7, 2006), White, J. Full Summary and Other Cases

Tort Law Child who was posthumously adopted by decedent could bring wrongful death action. Deric Lee Coon, by and through his Grandmother and Next Friend, Shirley Coon, Respondent v. American Compressed Steel, Inc. and William C. Copeland, Appellant, No 65185 (Mo. App. W.D., November 7, 2006), Hardwick, J. Full Summary and Other Cases