Courts Bulletin - 8-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 In license denial case, agency's answer circumscribes its case.  Arnold S. Barber, D.D.S. v. Missouri Dental Board, No. 07-1636 DB (Mo AHC, June 3, 2008), Chapel, Jr., C. Full Summary and Other Cases

Administrative Law Petition for judicial review need not state claim. Bruce F. Bird, P.E., Respondent v. Missouri Board of Architects, Professional Engineers, Professional Land Surveyors and Landscape Architects, Appellant, No. 88710 (Mo. banc, June 10, 2008), Wolff, J. Full Summary and Other Cases

Civil Practice & Procedure Sometimes the purpose of a statute overrides the words of the statute.  Scott Huber and Stephanie Huber, Appellants v. Wells Fargo Home Mortgage, Inc., and Franklin American Mortgage Company, Respondents, No. 88470 (Mo. banc, April 1, 2008), per curiam. Full Summary and Other Cases

Commercial Law Evidence showing a "meeting of the minds" is necessary to support a finding that a contract existed between the parties.  Viacom Outdoor, Inc., Respondent v. Max Taouil, Appellant, No. 89022 (Mo. App. E.D., May 27, 2008), Romines, J. Full Summary and Other Cases

Constitutional Law No standing to challenge midwife bill.  Missouri State Medical Association, et al., Respondents v. State of Missouri and Missouri Midwives Association, et al., No. 88783 (Mo. banc, June 24, 2008), Limbaugh, Jr., J. Full Summary and Other Cases

Criminal Law Illinois indictment admitted during penalty phase was irrelevant and prejudicial.  State of Missouri, Respondent v. Brian B. Fassero, Appellant, No. 88894 (Mo. banc, June 30, 2008), Wolff, J. Full Summary and Other Cases

Elder Law A presumption of undue influence arises when substantial evidence shows (1) a confidential and fiduciary relationship; (2) fiduciary obtained a benefit; and (3) some additional evidence from which there is an inference of undue influence.  John P. Duerbusch, Jr., as Personal Representative of the Estate of Marcella M. Karas, Deceased, John P. Duerbusch, Jr., Individually, Joseph J. Duerbusch, Individually, and Thomas H. Duerbusch, Respondents v. Donald Karas, Appellant, No. 88883, (Mo. App. E.D. , June 10, 2008), Cohen, C.J. Full Summary and Other Cases

Health & Hospital Law Pre-judgment interest may be awarded when a claim is liquidated.  Lester E. Cox Medical Centers Springfield MO, Plaintiff-Respondent, v. Steve G. Richards and Toni Richards, Defendants-Appellants, No. 28522 (Mo. App. S.D., May 9, 2008), Burrell, J. Full Summary and Other Cases

Insurance Law Exclusion in theft policy held ambiguous.  Columbia Mutual Insurance Company, Appellant v. Curtis W. Long, M.D., and Ann H. Long, Respondents, Nos. 67571 and 67572 (Mo. App. W.D., June 10, 2008), Holliger, J. Full Summary and Other Cases

Juvenile Law (1) Appointed counsel must notify Department of Social Services when the attorney believes the cost of representation may exceed the maximum fee allowed under the rules.  (2) Where an attorney represented mother in a termination of parental rights and was successful in both the court of appeals and the Supreme Court, and where the attorney documented 115 hours of work plus expenses of $597.24, the trial court's award of $5,097.24 is arbitrarily low where the court failed to indicate why the award was drastically below the amount requested.  (3) The court could remand to the trial court, but the court of appeals is also considered an expert on the subject of attorney's fees.  The court of appeals orders the trial court to enter judgment in the amount of $12,097.24 for fees and costs.  In the Interest of C.W., No. 89665 (Mo. App. E.D., June 17, 2008), Sullivan, J. Full Summary and Other Cases

Labor Law Appeals court rules employer can proceed with claims of non-compete and trade secret violations against former employee.  Wilson Manufacturing Company, Plaintiff/Appellant/Cross-Respondent v. Edward A. Fusco, Defendant/Respondent/Cross-Appellant, Nos. 89661 and 89912 (Mo. App. E.D., May 20, 2008), Crane, J. Full Summary and Other Cases

Labor Law - Federal The Eighth Circuit affirms a unanimous jury verdict in favor of an employer on claims brought under Title VII of the Civil Rights Act of 1964.  The district court committed harmless error in allowing evidence of a previous lawsuit the employee filed alleging discrimination by another employer.  The district court properly admitted evidence of the employee's prior treatment for depression because her mental condition was at issue, and impeachment of testimony contradicted by evidence is always proper.  Batiste-Davis v. Lincare, Inc., 526 F.3d 377 (8th Cir. 2008). Full Summary and Other Cases

Local Government Standing to challenge city's rezoning decision requires both near proximity to the rezoned site and proof that the rezoning affects plaintiffs more distinctly and directly than the general public.  Dennis Miller, et al., Appellants  v. Honorable Troy A. Cardona City of Arnold, Missouri, et al., Respondents, No. 90425 (Mo. App. E.D., May 27, 2008), Draper, J. Full Summary and Other Cases

Probate & Trust Law Judgment affirmed in a case where the trial court refused to grant plaintiff's request to hold defendants' property in constructive trust.  Although the trial court made the procedural error of ruling in favor of defendants by summary judgment rather than directed verdict, that error is not determinative and, thus, evidence on appeal should be viewed in a light most favorable to the judgment and not de novo as plaintiff suggests.   Josephine Adams Murphy, Plaintiff-Appellant v. Roland K. Middleton and Mary Beth Middleton, Defendants-Respondents, No. 28635 (Mo. App. S.D., June 10, 2008), Rahmeyer, J. Full Summary and Other Cases

Other Areas of Law Preparation of sale documents for ATVs and motorcycles may constitute the unauthorized practice of law.  Ed Zmuda, Appellant v. Chesterfield Valley Power Sports, Inc., Respondent, No. 90788 (Mo. App. E.D., June 10, 2008), per curiam. Full Summary and Other Cases