Courts Bulletin - 8-Mar
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 Statute requires that, for use of alcohol to be cause for license discipline, it have some effect on job performance. Kevin David Weber v. Missouri Board of Pharmacy, No. 07-0272 PH (Mo. AHC, January 30, 2008), Doughty, C. Full Summary and Other Cases

Administrative Law Only an aggrieved party can appeal a contested case. Ervin Davis, et al., Respondents v. St. Charles County, Missouri, et al., Appellants, Nos. 90063 and 90064 (Mo. App. E.D., March 4, 2008), Romines, J. Full Summary and Other Cases

Civil Practice and Procedure Procedural due process required to confine a contemnor. Fernando Smith, Relator v. Honorable John Kintz, Respondent, No 90472, (Mo. App. E.D., February 5, 2008), Draper, III, J. Full Summary and Other Cases

Commercial Law Trial court had no discretion in awarding litigant's attorneys' fees to which litigant was entitled under contract. Helen Lee, Shane Hu, and Kevin Huang, Appellants v. Investors Title Company, Respondent, No. 89042 (Mo. App. E.D., December 4, 2007), Draper, J. Full Summary and Other Cases

Constitutional Law Residence registration requirement was retrospective and, therefore, unconstitutional. R.L., Respondent v. State of Missouri Department of Corrections, Appellant, Case No. 88644 (Mo. banc, February 19, 2008), Teitelman, J. Full Summary and Other Cases

Criminal Law Residency restrictions on registered sex offenders are unconstitutionally retrospective as applied to those whose offenses were committed before the statute was enacted. R.L., Respondent v. State of Missouri Department of Corrections, Appellant, No. 88644 (Mo. banc, February 19, 2008), Teitelman, J. Full Summary and Other Cases

Family Law Custody judgment in dissolution action and guardianship in probate court regarding same child. Jacob R. Kelly, Respondent v. Gaytha Jane Kelly, Appellant, Debra Jane McDowell and Anthony Martin McDowell, Appellants, No. 67737 (Mo. App. W.D., February 19, 2008), Holliger, J. Full Summary and Other Cases

Health and Hospital Law A sufficient medical exam normally requires some type of face-to-face contact between the physician and patient. Wm. D. Thompson, M.D. v. State Board of Registration for the Healing Arts, No. 89649 (Mo. App. E.D., November 27, 2007), Ahrens, J. Full Summary and Other Cases

Labor Law - Federal The Eighth Circuit affirms district court's grant of summary judgment in favor of employer on multiple Title VII discrimination claims of a former U.S. Post Office employee because she did not contact the EEO within 45 days after the allegedly discriminatory incident; it rejected her claim of equitable tolling due to mental incapacity because she did not show that her mental condition prevented her from complying with the time limit. Vicky E. Jessie, Plaintiff-Appellant v. John E. Potter, Postmaster General, Defendant-Appellee, No. 07-1050, 2008 WL 441599 (8th Cir., February 20, 2008), Gibson, J. Full Summary and Other Cases

Local Government Review of county's zoning decision must be by writ of certiorari, and county may not collect for building permit fees when no permits had been applied for. Maurice Gash and Nancy Gash, Appellants/Respondents v. Lafayette County and Lafayette County Commission, Respondents/Appellants, No. 88437 (Mo. banc, February 19, 2008), Price, J. Full Summary and Other Cases

Probate and Trust Law Failure of conservator to request prior approval or to provide vouchers for necessary expenditures should not result in the disallowance of reasonable expenses. In the Estate of: Mykene M. Powell and Asya M. Powell; Harry D. Williams, Appellants v. Judge Ellen S. Roper; John Lister Whiteside, Respondents, Nos. 67285, 67286, 67481 & 67482, (Mo. App. W.D. February 19, 2008), Ellis, J.M. Full Summary and Other Cases

Property Law Portable scale found to be a fixture by analysis of three essential elements: (1) annexation to realty; (2) adapt to use; and (3) intent to be permanent. Francis B. Freeman, Jr., Plaintiff/Appellant v. Mary Ann Barrs, Defendant/Respondent, No. 28321 (Mo. App. S.D., November 8, 2007), Parrish, J. Full Summary and Other Cases

Public Service Commission The Western District Court of Appeals determined that it erred when it originally remanded the case to the Public Service Commission for further findings of fact and conclusions of law because no such findings are required in a noncontested case. In a noncontested case, such as the commission's review of tariffs, the court only reviews the commission's decision as to lawfulness. The court further concluded that the instate access recovery surcharges were not unduly or unreasonably discriminatory under §§ 392.200.2 and .3, RSMo. Thus, the commission's “Report and Order” which approved the tariffs was not unlawful. State of Missouri, ex rel. Public Counsel, Appellant v. Public Service Commission of the State of Missouri, et al., Respondents, No. 68333 (Mo. App. W.D., March 18, 2008), Welsh, J. Full Summary and Other Cases

Taxation Law in Missouri Income tax — Interest on refund calculation. Kidde America, Inc., and subsidiaries, Appellant v. Director of Revenue, Respondent, No. 88482 (Mo banc, January 15, 2008), Limbaugh, J. Full Summary and Other Cases

Tort Law Circuit court should use a three set process when a Batson challenge is made to preemptory strike. Doris Kesler-Ferguson and Boyd Ferguson, Respondents v. Hy-Vee, Inc., Appellant, No. 67361 (Mo. App. W.D., February 26, 2008), Spinden, J. Full Summary and Other Cases