Courts Bulletin - 7-Jul
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 On appeal from grant of a license subject to probation, Administrative Hearing Commission denies application. Scott R. Brandhorst v. State Committee of Psychologists, No. 05-0816 PS (Mo. AHC, May 2, 2007), Kopp, C. Full Summary and Other Cases

Administrative Law/Constitutional Law Agency procedure to seek judicial modification of judicial order does not violate Missouri constitution's separation of powers clause. 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

Civil Practice and Procedure Res judicata does not bar uninsured motorist claim based on alleged negligence of an uninsured motorist despite prior unsuccessful claim based on alleged negligence of different motorist in same accident. Nicole R. Kesterson and Philip M. Kesterson, Appellants v. State Farm Fire & Casualty Company and State Farm Mutual Automobile Insurance Company, Respondents, No. 66348 (Mo. App. W.D., May 9, 2007), Smith, J. Full Summary and Other Cases

Corporate and Business Law A plaintiff may refile a lawsuit that was previously dismissed, within one year of dismissal, pursuant to § 516.3701, RSMo, when the defendant was incorrectly named in the original suit. Hal Deane, Plaintiff-Appellant v. S.F. Pizza, Inc., Defendant-Respondent, No. 28005 (Mo. App, S.D., June 12, 2007), Parrish, J. Full Summary and Other Cases

Criminal Law Plain feel doctrine did not justify officer's search of match container. State of Missouri, Plaintiff/Appellant v. Robert P. Kelley, Defendant/Respondent, No. 28248 (Mo. App. S.D., June 26, 2007), Parrish, J. Full Summary and Other Cases

Family Law Level of proof needed for order of protection. Christinia M. George, Respondent v. Candace McLuckie, Appellant, No. 67478 (Mo. App. W.D., June 12, 2007), Ulrich, J. Full Summary and Other Cases

Health and Hospital Law Supreme Court upholds anti-abortion statute, but narrows its application. Planned Parenthood of Kansas and Mid-Missouri, Inc., et al., Appellants v. Jeremiah W. (Jay) Nixon, et al., Respondents, No. 87321 (Mo banc, May 1, 2007), per curiam. Full Summary and Other Cases

Insurance Law Assault by substitute teacher held not covered by insurer. Holly Todd and Kodey Todd, by and through Next Friend Holly Todd, Appellants v. Missouri United School Insurance Council, Respondent, No. 88020 (Mo. banc, May 29, 2007), Price, Jr., J. Full Summary and Other Cases

Juvenile Law (1) Section 211.038 is not to be applied retroactively. (2) Father's ongoing cognitive difficulties combined with his intention to move out of his sister's home supports the finding of the trial court that father remains unable to parent the child. (3) Evidence that the child began suffering nightmares and had behavior changes supports the finding that emotional harm would come to the child if the child were removed from the foster parents' home. In Interest of A.S.W., No. 88375 (Mo. banc, June 26, 2007), per curiam. Full Summary and Other Cases

Labor Law Article I, section 29 applies to “employees,” regardless of whether they are in the private or public sector, and nothing in this constitutional provision requires public employers to reach agreements with their employee associations. Independence-National Education Association, Independence-Transportation Employees Association, Independence-Educational Support Personnel, Randi Louise Mallett, and Ron Cochran, Appellants v. Independence School District, Respondent, No. 87980 (Mo. banc, May 29, 2007), Wolff, C.J. (See also: Constitutional Law) Full Summary and Other Cases

Labor Law - Federal The Eighth Circuit reverses the district court's grant of summary judgment in favor of employee on an Americans with Disabilities Act (“ADA”) reasonable accommodation claim, holding that the ADA does not require an employer to reassign a disabled employee to a vacant position when the reassignment would violate the employer's policy of hiring the most qualified candidate. Pam Huber, Plaintiff-Appellee v. Wal-Mart Stores, Inc., Defendant-Appellant, 486 F.3d 480 (8th Cir. 2007). Full Summary and Other Cases

Local Government City is immune from alleged negligent financial monitoring in conjunction with a redevelopment agreement. Leesa Parish, et al., Plaintiffs/Appellants v. Novus Equities Company, et al., Defendants/Respondents, No. 88842 (Mo. App. E.D., June 12, 2007), per curiam. (See also: Property Law and Tort Law) Full Summary and Other Cases

Property Law Circumstances control and vary, but lienholder's failure to redeem before the tax sale does not extinguish lienholder's interested party status to set aside the tax sale. In the Matter of Foreclosure of Liens for Delinquent Land Taxes, Collector of Revenue of the City of St. Louis, Appellant v. Parcels of Land Encumbered by Delinquent Tax Liens, Land Tax Suit 128-161, et al., Respondent, No. 88450 (Mo. App. E.D., June 12, 2007), Norton, P.J. Full Summary and Other Cases

Tort Law In a products liability case against several manufacturer's of paint, the Supreme Court found that the plaintiff had the burden of proving the identity of the defendant who made the product that caused the specific damage and could not rely upon the market share liability theory. City of St. Louis, Appellant v. Benjamin Moore & Company, et al., Respondents, No. 88230, (Mo. banc, June 12, 2007), per curiam. Full Summary and Other Cases

Workers' Compensation Does the § 287.270 RSMo credit for professional athletes apply equally to temporary total disability (“TTD”) medical, but also the assessed permanent total disability (“PTD”) to which the athlete would be entitled? Steven Dubinsky, Employee/Appellant v. St. Louis Blues Hockey Club, Employer/Respondent, No. 88767 (Mo. App. E.D., May 1, 2007), Ahrens, P.J. Full Summary and Other Cases