Courts Bulletin - 7-Aug
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

Bankruptcy Law Tax refunds are not exempt from property of a bankruptcy estate as there is no state or federal exemption for tax refunds. In re: Charles Benn, Jr., Debtor (Charles Benn, Jr., Appellee v. James S. Cole, Appellant, etc.), No. 06-2217, 2007 WL 1976071 (8th Cir., July 10, 2007), Colloton, J. Full Summary and Other Cases

Civil Practice & Procedure A settlement may be enforceable even though the plaintiff has died before the settlement; the settlement of a negligence claim will usually bar a later wrongful death claim. Gladys Campbell, et al., Plaintiffs/Appellants v. Tenet Healthsystem, DI, Inc., Defendant/Respondent, No. 88537 (Mo. App. E.D., May 29, 2007), Richter, P.J. Full Summary and Other Cases

Criminal Law Defendant was charged with one form of an offense, but convicted of another. State of Missouri, Plaintiff/Respondent v. Michael Edward Patton, Defendant/Appellant, No. 27792 (Mo. App. S.D., July 30, 2007), Lynch, J. Full Summary and Other Cases

Elder Law In Missouri, a Medicaid claimant only has to show that a monthly maintenance needs allowance as determined by the Family Support Division is insufficient (resulting in significant financial duress), and does not require a claimant to prove exceptional circumstances. Nellie Plumb, Respondent v. Missouri Department of Social Services, Family Support Division, Appellant, No. 88643 (Mo. App. E.D., June 26, 2007), Draper, III, P.J. Full Summary and Other Cases

Environmental & Energy Law Plaintiffs Linda Chipperfield and the Sierra Club appealed the judgment of the Greene County Circuit Court affirming the decision and order of the Missouri Air Conservation Commission which upheld the Missouri Department of Natural Resources issuance to the City Utilities of Springfield of a permit to construct a pulverized coal-fired boiler. Linda Chipperfield and Sierra Club, Petitioners/Appellants v. Missouri Air Conservation Commission, Respondent/Respondent and City Utilities of Springfield, Intervenor/Respondent, No. 27947 (Mo. App. S.D., June 18, 2007), Lynch, J. Full Summary and Other Cases

Family Law Challenge to administrative review of child support. State ex rel. Sherrie L. Hansen, Relator v. State of Missouri, Department of Social Services, Family Support Division, Janel Luck, Director, Respondent, No. 88242 (Mo. banc, June 26, 2007), Stith. J. Full Summary and Other Cases

Health & Hospital Law Mere economic competitors have no standing to contest issuance of nursing home license. State of Missouri ex rel. Christian Health Care of Springfield, Inc., et al., Appellants v. Missouri Department of Health and Senior Services and R.H. Montgomery Properties, Inc., Respondents, No. 66710 (Mo. App. W.D., July 6, 2007), Smith, J. Full Summary and Other Cases

Insurance Law Foster child held not a relative of insured and therefore not entitled to stack uninsured coverages of auto policies. Lacey L. Kertz, Appellant v. State Farm Mutual Automobile Insurance Company, Respondent, No. 88839 (Mo. App. E.D., July 10, 2007), Cohen, J. Full Summary and Other Cases

Juvenile Law (1) Termination of parental rights is a civil proceeding and there is no statutory or common law right to be present at the proceeding. (2) Mother's guardian ad litem (“GAL”) is given discretion to waive mother's presence at the TPR hearing and did so in this case. (3) There is no requirement in a civil case that mother be competent to stand trial. Where mother is incompetent, the only requirement is that she have a GAL appointed. (4) There is no requirement for a separate post-termination hearing to ascertain whether a parent has received effective assistance of counsel. In re the Interest of: W.J.S.M. A Minor Child Kathryn Herman Juvenile Officer, Respondent, v. M.H., The Child's Natural Mother, Appellant, No. 88904 (Mo. App. E.D., July 10, 2007), Richter, P.J. Full Summary and Other Cases

Labor Law Direct verdict properly entered when plaintiff failed to establish all essential elements to the prima facie case of disability discrimination and constructive discharge. Karen Gamber, Appellant, v. Missouri Department of Health and Senior Services, Respondent, No. 67170 (Mo. App. W.D., June 5, 2007), Ulrich, J. Full Summary and Other Cases

Labor Law - Federal The Eight Circuit affirmed the district court's grant of judgment as a matter of law in favor of the employer on a race discrimination claim noting that “it almost defies reason” that an employer would go out of their way to recruit an employee for a position with the idea that they were going to discriminate against him. Robert Harrison, Plaintiff-Appellant v. United Auto Group, Steven Landers, Sr., and Dwight Everett, Defendants-Appellees, 2007 WL 2002559 (8th Cir. 2007) Benton, C.J. Full Summary and Other Cases

Property Law Note:  Re Terry W. Dixon and Cynthia Crossland, Plaintiffs/Respondents v. Thomas D. Thompson, Defendant/Appellant, No. 27529 (Mo. App. S.D., July 16, 2007), previously summarized in the May issue of Courts Bulletin.   On or about April 24, 2007, the Missouri Supreme Court accepted transfer and on July 3, 2007, issued its order to the effect “where doubt exists as to the right of appeal it should be resolved in favor of that right.”  The case was retransferred to the Missouri Court of Appeals, Southern District, who on July 16, 2007 withdrew its prior dismissal of the appeal. Full Summary and Other Cases

Tort Law Jury's verdict is not final until it is accepted by trial court and recorded. Ellen Smith, Appellant v. International Catering North, Inc., d/b/a/ The Ambassador, Respondent, No. 88897, (Mo. App. E.D., June 26, 2007), Romines, J. Full Summary and Other Cases