Courts Bulletin - 7-Jan
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 Records produced to the Administrative Hearing Commission, but not to the Division of Medical Services, do not show compliance with Medicaid regulation requiring that records be available during inspection. Elite Healthcare, LLC vs. Department of Social Services, Division of Medical Services, No. 05-1403 SP (AHC, December 6, 2006), Jarrett, C. Full Summary and Other Cases

Administrative/Constitutional Law Action against board members and employee dismissed based on immunity and failure to state a claim. Dr. Gary Edwards, Appellant, v. Lawrence M. Gerstein, et al, Respondents, No. 66678 (Mo. App. W.D., December 26, 2006), Holliger, J. Full Summary and Other Cases

Civil Practice & Procedure Be careful when contesting and appealing contempt charges. STL Capital Management, LLC, Respondent v. John Brda and STL Capital Company LLC, Appellants, No. 88184 (Mo. App. E.D., November 28, 2006), Shaw, C.J. (See also: Corporate/Business Law) Full Summary and Other Cases

Construction Law The Missouri Supreme Court held, relative to the agreement between a home builder and the home purchasers, that: 1) though an arbitration clause in a contract of adhesion would not be enforceable, the fact that the contract was a preprinted form did not meet the requirements of a contract of adhesion; 2) though an arbitration clause may give only one party the right to select the arbitrator, the clause was not invalid due to a lack of mutuality of obligations, since both parties had exchanged consideration; 3) the method set out in the contract for the selection of arbitrator is substantively unconscionable and must fail because the clause does not provide for the selection of an unbiased arbitrator; and (4) the cost shifting provision of the arbitration clause that requires the consumer to bear all of the fees of the arbitration is unconscionable and unenforceable. State ex rel. Gayle Vincent, et al., Relators, v. Honorable Nancy Schneider, Judge, Eleventh Judicial Circuit, Respondent, No. 87203 (Mo. banc, June 30, 2006), Price, Jr., J. Full Summary and Other Cases

Corporate & Business Law When a trial court's judgment covers two separate issues, each issue is separately appealable. STL Capital Management, LLC, Respondent v. John Brda and STL Capital Company, LLC, Appellants, No. 88184 (Mo. App. E.D., November 28, 2006), Shaw, C.J. (See also: Civil Practice & Procedure) Full Summary and Other Cases

Criminal Law Waiver of counsel not shown to be knowing or voluntary. State of Missouri, Plaintiff/Respondent v. James M. Nichols, Defendant/Appellant, No. 27047 (Mo. App. S.D., December 4, 2006), Garrison, J. Full Summary and Other Cases

Elder Law Court issues new opinion after withdrawal of March 21, 2006 opinion in Gee case, Lillian Gee, Respondent, Department of Social Services, Family Support Division, Appellant, No. 65693 (Mo. App. W.D., December 12, 2006), Howard, J. Full Summary and Other Cases

Family Law Presumed correct support amount even if daycare paid separately. John Mitalovich, Appellant, v. Tammy Lee Toomey, Respondent, No. 87755 (Mo. App. E.D., November 21, 2006, Ahrens, P.J. Full Summary and Other Cases

Insurance Law Promissory estoppel theory against insurance agent inappropriate where other remedy is available. Neal S. Clevenger and Mitsue I. Clevenger, Respondents v. Oliver Insurance Agency, Inc., Appellant, No. 65500 (Mo. App. W.D., December 26, 2006), Holliger, J. Full Summary and Other Cases

Juvenile Law Failure to comply with §211.455.3 is reversible error. In the Interest of: C.W., No. 88049 (Mo. banc, January 9, 2007), Teitelman, J. Full Summary and Other Cases

Labor Law - Federal The Eighth Circuit holds plaintiff in 42 U.S.C. § 1981 race discrimination case is not required to show satisfactory job performance. Arnold v. Nursing and Rehabilitation Center at Good Shepherd, LLC, Nos. 05-4055 and 05-4270 (8th Cir., December 8, 2006). Full Summary and Other Cases

Local Government To receive an award of prejudgment interest in an inverse condemnation case, the issue must be presented to and awarded by the jury, as there is no statutory right to such an award. Randolph Akers and Kelly Akers, Respondents v. City of Oak Grove, Missouri, Appellant, No. 65220 (Mo. App. W.D., November 14, 2006), Breckenridge, J. Full Summary and Other Cases

Property Law Planned development site plan where properly approved and recorded can constitute a “plat” and the outlines depicted in the site plan may be given legal effect as an easement by a court. Barry Simon Development, Inc., (formerly the Lenore Ross Revocable Trust), Plaintiff/Respondent, v. Laurie Hale, et al., Defendants/Appellants; No. 87452 (Mo. App. E.D., October 24, 2006), Richter, P.J. Full Summary and Other Cases

School Law and Higher Education Headnote: School owed no duty of care to students who were killed while traveling to championship game in student-driven vehicle. Timothy and Kelley Truss, Appellants v. Lutheran South High School Association of St. Louis, et al., Respondents, No. 86513 (Mo. App. E.D., June 27, 2006). and Theresa Davis, et al., Appellants v. Lutheran South High School Association of St. Louis, et al., Respondents, No. 86449 (Mo. App. E.D., June 27, 2006), Shaw, J. Full Summary and Other Cases

Tort Law Statutory cap for sovereign liability is determined from the date of the judgment, not the date the cause of action accrued. Loma Robinson, Respondent, v. St. Louis Board of Police Commissioners, Appellants, No. 87487 (Mo.App. E.D., December 5, 2006), Richter, P.J. Full Summary and Other Cases

Other Areas of Law House Bill 972 (93rd General Assembly) violated the Missouri constitutional prohibition of amendments not related to the bill's original purpose and the amendments are severed. Missouri Association of Club Executives, Inc., et al., Respondents v. State of Missouri, Appellant, No. 87154 (Mo. banc, December 19, 2006), White, J. Full Summary and Other Cases