Courts Bulletin - 7-Feb
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 acts as independent, objective reviewer of agency actions. Department of Social Services, Appellant v. John Mellas, Respondent, No. 66602, (Mo App. W.D., January 23, 2007), Spinden, J. Full Summary and Other Cases

Administrative/Constitutional Law De novo review requires no deference to any previous agency decision. Department of Social Services, Appellant v. John Mellas, Respondent, No. 66602, (Mo App. W.D., January 23, 2007), Spinden, J. Full Summary and Other Cases

Civil Practice and Procedure Rule 74.01(a) requires that a final order says it is a “judgment” or “decree.” August A. Orf, Jr. and Florence Orf, Respondents v. Karen Orf, Appellan,; No. 86972 (Mo. App. E.D., December 12, 2006), Romines, J. Full Summary and Other Cases

Criminal Law No double jeopardy in convicting of a lesser included offense, although the trial judge had said the words “not guilty.” State of Missouri, Respondent v. Brian Edwin Neher, Appellant, No. 87860 (Mo. banc, January 9, 2007), per curiam. Full Summary and Other Cases

Family Law Standard of proof for modification of joint physical custody. Kimberly Russell n/k/a Kimberly Bichsel, Respondent v. Mark Russell, Appellant, No. 87917 (Mo. banc, January 9, 2007), Wolff, C.J. Full Summary and Other Cases

Health and Hospital Law Retail sale of veterinary drugs is not the “practice of pharmacy.” United Pharmacal Company of Missouri, Inc., Appellant v. Missouri Board of Pharmacy, Respondent, No. 87316 (Mo. banc, December 19, 2006), Wolff, C. J. Full Summary and Other Cases

Insurance Law Underinsured motorist insurer held to have waived objection to joinder in suit. Michael Kinney, Appellant-Respondent v. Schneider National Carriers, Inc., et al; Defendant, Allstate Insurance Company, Respondent-Appellant, Nos. 66429 and 66501 (Mo. App. W.D., January 30, 2007), Newton, P.J. Full Summary and Other Cases

Juvenile Law The totality of mother's conduct is the test which the court must apply in determining termination of parental rights for failure to rectify. In the Interest of L.R.S. C.M.S., Appellant v. The Greene County Juvenile Office, Respondent, No. 27871 (Mo. App. S.D., January 17, 2007), Scott, J. Full Summary and Other Cases

Labor Law Former employer is entitled to recover damages for breach of contract and fraudulent misrepresentation when former employee copied and retained company records from a company-owned computer. Jury properly awarded actual, compensatory and punitive damages. Martha's Hands, LLC, Respondent/Cross-Appellant v. Gregory Starrs, Appellant/Cross-Respondent, No. 85638 (Mo. App. E.D., December 12, 2006), Shaw, J. Full Summary and Other Cases

Labor Law - Federal The Eighth Circuit finds question of material fact regarding city's assumptions about age in its “Leave Donation Program” eligibility rules. U.S. E.E.O.C. v. City of Independence, Mo., 471 F.3d 891, No. 05-4489 (8th Cir., December 22, 2006). Full Summary and Other Cases

Local Government Revenue bonds issued for commercial power plant may be approved by board of aldermen rather than by public vote. StopAquila.org, et al., Appellants v. City of Peculiar, Missouri, Respondent, No. 87302 (Mo. banc, December 19, 2006), Stith, J. (See also: Administrative/Constitutional Law) Full Summary and Other Cases

Medical Malpractice When trial court grants JNOV and states in the order that “based upon the weight of the evidence and arguments of counsel if it had not granted the JNOV it would have ordered a new trial,” a new trial will be ordered when the court of appeals reverses the JNOV. Pamla G. Laws, Appellant v. St. Luke's Hospital, et al.; Defendant. Thomas Helling and Mid-America Surgical Specialists, P.C.; Respondents, Melissa Vu, M.D., Defendant, No. 66564 (Mo. App. W.D., January 9, 2007), Newton, P.J. Full Summary and Other Cases

Property Law A fence is not a building. Dottie D. Crenshaw, Plaintiff-Respondent v. Daniel A. Maguire and Carol A. Maguire, Defendant-Appellants and Carol Crouse, Trustee, Defendant-Appellant; No. 87223 (Mo. App. E.D., December 12, 2006), Romines, J. Full Summary and Other Cases

Tort Law Busy intersection near college where students regularly crossed congested street could be considered a dangerous condition waiving sovereign immunity of city. Tan Huifang and Chen Zhiping, Respondents v. City of Kansas City, Missouri, et al., Appellants, No. 65086 (Mo. App. W.D., January 23, 2007), Smart, J. Full Summary and Other Cases

Workers' Compensation Are injuries sustained in a motor vehicle accident (“MVA”), caused by an epileptic seizure, compensable or not compensable as an idiopathic injury? Leslie Dubose, Claimant/Respondent v. City of St. Louis, Employer/Appellant, and Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Additional Party, No. 87865 (Mo. App. W.D., November 14, 2007), Crane, J. Full Summary and Other Cases