Courts Bulletin - 8-Jun
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 No jurisdiction over expired license. Director of Revenue, Petitioner v. Ahmeda Alshoualkhat, d/b/a AAA Auto Sales, No. 07-1199 RL (May 2, 2008, Mo. AHC), Kopp, C. Full Summary and Other Cases

Administrative Law On appeal of circuit court's judgment reviewing contested case, party aggrieved by the administrative decision is designated as appellant; in this case, appealing party is respondent. Versatile Management Group and Demitrius Glass, Respondents v. W. Dale Finke, Director of Insurance, State of Missouri, Appellant, Case No. 88144-01 (Mo. App. E.D., May 6, 2008), Mooney, J. Full Summary and Other Cases

Civil Practice & Procedure Plaintiff's objection based on lack of factual detail in proposed instructions in conjuction with extensive off-the-record instruction conference held sufficient to preserve claim of instructional error.  Bernice Mitchell, Appellant v. Joseph Evans, M.D., Surgical Care of Independence, Inc., Sol H. Dubin, M.D., Orthopedic Associates of Kansas City, Inc., Robert L. Bowser, M.D., Jeff Richardson, C.R.N.A., and Independence Anesthesia, Inc., Respondents, No. 66959 (Mo. App. W.D., May 13, 2008), Holliger, J. Full Summary and Other Cases

Constitutional Law Definitions of assets and wages for Missouri Incarceration Reimbursement Act are not so vague as to be unconstitutional. State of Missouri ex rel. Jeremiah W. Nixon, Attorney General, State of Missouri, Respondent v. Richard Dale Peterson, Appellant, No. 88776 (Mo. banc, May 20, 2008), Price Jr., J. Full Summary and Other Cases

Construction Law Missouri mechanic's lien statutes do not require an entity which is not pursuing a mechanic's lien, but rather whose claims are against the owner and others sound in contract and in tort, to intervene in the equitable mechanic's lien suit. George Weis Company, Appellant v. Stratum Design-Build, Inc., et al., Respondents, No. 88194 (Mo. banc, July 6, 2007), Stith, J. Full Summary and Other Cases

Criminal Law Motion court could extend time to file amended post-conviction motion after the time limits for the original filing. Johnnie C. Volner, Movant-Appellant v. State of Missouri, Respondent-Respondent, No. 28433 (Mo. App. S.D., May 29, 2008), Lynch, J. Full Summary and Other Cases

Insurance Law Fire insurance policy held ambiguous and insurer therefore obligated to pay replacement cost rather than lesser amount set out in declaration page of policy. Douglas Dibben and Deborah Dibben, Appellants v. Shelter Insurance Company, Respondent, No. 68269 (Mo. App. W.D., May 6, 2008), Spinden, P.J. Full Summary and Other Cases

Juvenile Law Where juvenile inquired whether his classmate wanted to help him blow up the school if the juvenile received dynamite from his father for his birthday, the evidence does not establish that a threat was made or that the threat would have caused a substantial and unjustifiable risk of an evacuation or closure of the school. Thus, the juvenile did not commit a violation of Section 574.115 by making a terroristic threat. In the Interest of: C.G.M., II, Appellant v. Juvenile Officer, Respondent, No. 68865 (Mo. App. W.D., June 10, 2008), Welsh, J. Full Summary and Other Cases

Labor Law - Federal The Eighth Circuit overturns a jury verdict in favor of an employee on claims brought under the Age Discrimination in Employment Act (ADEA) and remands the case for a new trial; the district court erred in allowing jury instructions that shifted the burden of persuasion to the employer, which did not constitute a harmless error. Jack Gross, Appellant/Cross-Appellee v. FBL Financial Services, Inc., Defendant, FBL Financial Group, Inc., Appellee/Cross-Appellant, Iowa Farm Bureau Federation; Farm Bureau Mutual Insurance Company; William Oddy, Defendants, Nos. 07-1490, 07-1492, (8th Cir. May 14, 2008), 526 F.3d 356. Full Summary and Other Cases

Local Government City's failure to discover alleged defect in plat for approved subdivision did not establish a claim for inverse condemnation due to storm water run-off damages suffered by subsequent home owner. State ex rel. City of Blue Springs, Missouri, Relator v. The Honorable W. Stephen Nixon, Respondent, No. 88475 (Mo. banc, April 29, 2008), Stith, C. J. Full Summary and Other Cases

Medical Malpractice If plaintiff submits a verdict-director which is supported by the evidence and in proper form, it is error for the court to give its own instruction even if it is in proper form and supported by the evidence. Bernice Mitchell, Appellant v. Joseph Evans, M.D., Surgical Care of Independence, Inc., Sol H. Dubin, M.D., Orthopedic Associates of Kansas City, Inc., Robert L. Bowser, M.D., Jeff Richardson, C.R.N.A., and Independence Anesthesia, Inc., Respondents, No. 66959 (Mo. App. W.D., May 13, 2008), Holliger, J. Full Summary and Other Cases

Tort Law Evidence of the absence of prior accidents is relevant to show: 1) absence of a defect or condition; 2) lack of a causal relationship between injury and the defect or condition charged; 3) non-existence of an unduly dangerous condition; or 4) lack of knowledge of or grounds to realize the danger. Stephanie Heitman and Ronald Heitman, Appellants v. Heartland Regional Medical Center, Respondent, No. 68374 (Mo. App. W.D., April 29, 2008), Dandurand J. Full Summary and Other Cases

Workers' Compensation Notice to claimant of an order of dismissal for failure to prosecute when counsel is not notified, must be sent by certified mail. Cynthia Phelan, Appellant v. Treasurer of the State of Missouri-Custodian of the Second Injury Fund, Respondent, No. 68023 (Mo. App. W.D., April 8, 2008), Howard, C.J. Full Summary and Other Cases