Courts Bulletin - 7-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 Definitions of filing deadline differ between regulation and application. Alexandra G. Manzonelli vs. Missouri Real Estate Commission, No. 06-1385 RE (Mo. AHC, February 27, 2007), Doughty, C. Full Summary and Other Cases

Administrative/Constitutional Law Amount of process due before deprivation discussed. Mildred Jamison, et al., Respondents v. State of Missouri, Department of Social Services, Division of Family Services, Appellant, No. 87360 (Mo. banc, March 13, 2007), Stith, J. Full Summary and Other Cases

Civil Practice and Procedure Final judgment in disputes about real property must include the exact description of the property in dispute. Joanne Zacharewicz, Juanita Carl, Harold Nachtrieb and Christine Nachtrieb, Appellants v. Sarah Hanly, Frank Nichols, and Genice Self, Trustees of University Heights Subdivision, Respondents, No. 87345 (Mo. App. E.D., February 6, 2007), per curiam. Full Summary and Other Cases

Criminal Law Advice to reject a plea offer does not state cognizable post-conviction claim. Ricky Lee Beach, Movant/Appellant v. State of Missouri, Respondent/Respondent, No. 27918 (Mo. App. S.D., March 1, 2007), Lynch, J. Full Summary and Other Cases

Elder Law New minimum monthly maintenance needs allowance announced:   The Department of Health and Human Services announced the poverty income guidelines for 2007: $10,210 for one person and $13,690 for a couple. (Alaska figures are $12,770 and $17,120, respectively and Hawaii are $11,750 and $15,750 respectively.) Full Summary and Other Cases

Employee Benefits Disability pension payable until normal retirement age is a non-marital asset, in contrast to the pension benefit payable at normal retirement which is a marital asset for purposes of division of property in a dissolution proceeding. Sandra Ray Coffman, Respondent v. Elvin Cale Coffman, Appellant, No. 66204 (Mo. App. W.D., February 27, 2007), Ellis, J. Full Summary and Other Cases

Enviornmental and Energy Law There is no requirement under §§386.500.1 and 386.510 and Rule 84.05(e) that a party contesting the decision of the PSC be “aggrieved” in the same way a party would be required to bring an appeal in an ordinary civil case, but rather the party need only be “interested therein . . . with respect to any matter determined therein.” State of Missouri ex rel. Riverside Pipeline Company, L.P., Mid-Kansas Partnership, and Missouri Gas Energy, Respondents, v. Public Service Commission of the State of Missouri, Appellant, No. 87495 (Mo. banc, January 30, 2007), Limbaugh, Jr., J. Full Summary and Other Cases

Family Law Burden of proof of stalking for order of protection. Thomas Schwalm, Respondent v. Lori Schwalm, Appellant, No. 87829 (Mo. App. E.D., March 20, 2007), Richter, P.J. Full Summary and Other Cases

Health and Hospital Law Is the trial judge “designated” when the chief justice appoints a judge or when the transfer order is filed with the circuit court? Cover v. Robinson, No. 66730 (Mo. App. W.D., February 27, 2007), Lowenstein, J. Full Summary and Other Cases

Juvenile Law (1) Although consent to an adoption is not required from a father unless he is a presumed father under the Uniform Parentage Act or unless he has filed a paternity action or registered with the putative father registry within fifteen days of the child's birth, the adoption statutes do not preclude a hearing on parental unfitness and the adoption statutes tacitly allow such a father to contest an adoption by presenting evidence of parental fitness. (2) In this case, father had standing to intervene because he signed an “acknowledgment of paternity” form and thereafter timely intervened. (3) Father should have been permitted to produce all evidence relating to parental fitness even though he did not fall within one of the three categories of fathers from whom consent to an adoption must be obtained. (4) The failure to file a paternity action or to register with the putative father registry is merely one factor to be considered as part of any such challenge by such fathers. (5) In the great majority of cases there will be no impediment to the adoption because there will be no challenge by such fathers who have not registered or established paternity. In re the Adoption of: N.L.B. M.T. and S.T., Respondents, v. Craig Lentz, Appellant, No. 87291 (Mo. banc, January 9, 2007), Limbaugh, Jr., J. Full Summary and Other Cases

Labor Law Appeal from the Labor and Industrial Relations Commission. Reginia Cubit, Appellant, v. Accent Marketing Services, LLC, Defendant, Division of Employment Security, Respondent, No. 66800 (Mo. App. W.D., March 6, 2007, Holliger, J. Full Summary and Other Cases

Labor Law - Federal The Eighth Circuit decides health benefit plan omitting contraceptive coverage is not discriminatory. In re: Union Pacific Railroad Employment Practices Litigation, No. 06-1706 (8th Cir. March 15, 2007). Full Summary and Other Cases

Local Government Hancock Amendment does not preclude the City of St. Louis from being required to fully fund police and fire retirement systems. Thomas G. Neske, et al., Respondents v. City of St. Louis, et al., Appellants. (consolidated with) Firemen's Retirement System, et al., Respondents v. City of St. Louis, et al., Appellants, Nos. 87976 and 87977 (Mo. banc, March 13, 2007), Russell, J. Full Summary and Other Cases

Medical Malpractice When plaintiff presents expert testimony in medical malpractice action that physician did not comply with the standard of care he must also present evidence from that expert witness as to the experts definition of standard of care. Harry McLaughlin and Doris McLaughlin, Appellants, v. Raymond Griffith and Freeman Health System, Respondents, No. 27679 (Mo. App. S.D., February 5, 2007), Scott J. Full Summary and Other Cases

Property Law “Flag annexation” violates “compactness” required by statute as a matter of law. Shirley Dodson, Appellant v. City of Wentzville, Respondent, No. 87249 (Mo. App. E.D., February 6, 2007), Mooney, J. Full Summary and Other Cases

Tort Law “Independent contractor exception” does not apply to general negligence; landowner can be held liable to contractor under general negligence theory. James T. Daoukas, Respondent/Cross-Appellant v. The City of St. Louis, Cross-Respondent and William Lacey, Appellant, No. 87350 (Mo. App. E.D., March 6, 2007), Draper, P.J. Full Summary and Other Cases

Workers' Compensation Do permanent total disability benefits survive the death of a claimant to be payable to the claimant's dependent(s)? Fred Schoemehl, Deceased, Annette Schoemehl, Appellant, v. Treasurer of the State of Missouri, as Respondent of the Second Injury Fund, Respondent, No. 87750 (Mo. banc, January 9, 2007), Teitelman, J. Full Summary and Other Cases