Courts Bulletin - 6-Nov
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 Administrative Hearing Commission cannot review a settlement agreement before the parties have signed it. Dawn Lentz, RN v. State Board of Nursing, No. 06-1257 BN (AHC, October 3, 2006), Kopp, C. Full Summary and Other Cases

Administrative/Constitutional Law Cold weather rule was not a contested case. State of Missouri, ex rel. Missouri Gas Energy, a Division of Southern Union Company, Laclede Gas Company and Atmos Energy Corporation, Respondents, v. Public Service Commission of the State of Missouri, Appellant; AARP, Human Development Corporation of Metropolitan St. Louis and National Consumer Law Center, Amicus Curiae, No. 66666 (Mo. App. W.D. October 31, 2006), Newton, J. Full Summary and Other Cases

Civil Practice and Procedure Dismissal reversed for failure to grant timely request to make first amendment to pleadings. Robert Moynihan, Appellant, vs. City of Manchester and Barbara Burns Matthews, Respondents, No. 87579, (Mo. App. E.D., October 17, 2006), Draper, P.J. Full Summary and Other Cases

Criminal Law Statute authorizing post-conviction DNA testing applies only where identity was an issue at trial. State of Missouri v. Thomas J. Waters, Jr., No. 65718 (Mo. App. W.D., October 3, 2006), Newton, J. Full Summary and Other Cases

Elder Law A durable power of attorney must be executed before a transaction occurs that is based on the authority provided under that durable power of attorney. Carolyn Tallmadge, by and through James Tallmadge, her attorney-in-fact, Plaintiff/Appellant vs. Beverly Enterprises-Missouri, Inc., Respondent, No. 87981 (Mo. App. E.D., September 26, 2006), Hoff, J. Full Summary and Other Cases

Health and Hospital Law Trial court must carefully articulate its reasons for appointing the public administrator to serve as a guardian when a person designated to serve as a guardian pursuant to § 475.050.1, RSMo, is both available and willing to serve as guardian. In the Interest of Robert A. Prost, an alleged incapacitated and disabled person, Respondent/Appellant, v. Dorn Schuffman, Director of the Department of Mental Health, Petitioner/Respondent, No. 87269 (Mo. App. E.D., September 26, 2006), Sullivan, J. Full Summary and Other Cases

Insurance Law Commercial general liability insurer held to have no coverage for claim arising out of assault. Penn-America Insurance Company, Appellant, v. The Bar, Inc. d/b/a Funkytown, et al; Ronnie Banister, Respondents, No. 65697 (Mo. App. W.D., September 19, 2006), Lowenstein, J. Full Summary and Other Cases

Labor Law Where an independent contractor leased a tractor trailer to a trucking company, and independent contractor sustained injuries due to the alleged negligence of company's driver of the leased truck in which independent contractor was a passenger, trucking company was not entitled to summary judgment under: (1) the “borrowed servant defense;” or (2) the indemnity and hold harmless provisions of the lease agreement between trucking company and independent contractor. Raul Caballero and K. Stacey Caballero, Plaintiffs/Appellants v. Leland D. Stafford, Jr., Defendant and New Prime, Inc., Defendant/Respondent, No. 27272 (Mo. App. S.D., August 23, 2006), Garrison, J. Full Summary and Other Cases

Local Government Grant of tax incremental financing (“TIF”) funds does not violate constitutional establishment clauses because Jesuit university is not “controlled by a religious creed.” Saint Louis University, Respondent v. The Masonic Temple Association of St. Louis, et al., Appellants, No. 86804 (Mo. App. E. D., October 3, 2006), Richter, J. Full Summary and Other Cases

Property Law Demand for deed of release sufficient to invoke provisions of § 443.130, RSMo even though § 443.130 not specifically cited in letter itself. Robert L. Adams and Laraine Rae Adams, his wife, Appellants v. Union Planters Bank, N.A., Respondent, No. 85841-01 (Mo. App. E.D., September 5, 2006), Dowd, Jr. J. Full Summary and Other Cases

Public Service Commission 1) The emergency cold weather rule promulgated by the Missouri Public Service Commission (“PSC”) was a rulemaking case, not a ratemaking case, and therefore did not require contested case procedures; and 2) a tariff that incorporates the text of an existing rule does not supersede the statutory authority of the PSC to make rules on the same subject. State of Missouri, ex rel. Missouri Gas Energy, a Division of Southern Union Company, Laclede Gas Company and Atmos Energy Corporation, Respondents, v. Public Service Commission of the State of Missouri, Appellant; AARP, Human Development Corporation of Metropolitan St. Louis and National Consumer Law Center, Amicus Curiae, No. 66666 (Mo. App. W.D., October 31, 2006), Newton, J. Full Summary and Other Cases

Tort Law NOTE: Change of outcome of case previously reviewed in the February, 2006 Courts Bulletin regarding the matter of Randall D. Peters, Personal Representative of the Estate of Constance Marie Peters, Deceased, Respondent v. General Motors Corporation; Appellant, Moffett's Auto Works, Inc., Defendant, No. 62807 (Mo. App. W.D., January 17, 2006), Ulrich, J. Full Summary and Other Cases

Workers' Compensation Is the delivery of drywall in the operation of a general contractor's usual construction business? James A. Looper, Appellant v. Todd Q. Carroll, Defendant; Scott Hanlan d/b/a Strate Line Construction, Respondent, No. 65837 (Mo. App. W.D., September 29, 2006), Hardwick, J. Full Summary and Other Cases