Courts Bulletin - 9-Aug
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 Refund claims on amended income tax returns were not timely.  Aquila, Inc. and Subsidiaries v. Director of Revenue, No. 08-0637 RI (Mo. AHC, July 29, 2009), Kopp, C. Full Summary and Other Cases

Administrative Law City ordinance's hearing requirement signified a contested case proceeding, but in such proceeding, allegations the city employee had made certain representations did not support estoppel against government.  Jagpal Gosal, Appellant v. The City of Sedalia, Respondent, No. 69871 (Mo. App. W.D., July 21, 2009), Welsh, J. Full Summary and Other Cases

Civil Practice and Procedure Voir dire questions regarding potential jurors' prior litigation involvement must be objectively unambiguous to support juror nondisclosure argument, even if juror subjectively understands the questions.  Patricia Sapp, Sheila Bennett, Christine Phillips and Arcie Sapp, Jr., Respondents v. Morrison Brothers Co. and Eckelberry Service Co., Appellants, Nos. 69700 and 69734 (Mo. App. W.D., May 19, 2009), Ahuja, J. Full Summary and Other Cases

Constitutional Law Wife's consent to warrantless search of home and seizure of husband's computer and digital camera did not violate the 4th Amendment of the U.S. Constitution or Article I, Section 15 of the Missouri Constitution, where warrant was later obtained and discovery of the evidence was inevitable.  State of Missouri, Respondent v. Robert M. Oliver, Appellant, No. 89888 (Mo. banc, August 4, 2009), Price, J. Full Summary and Other Cases

Criminal Law Court grants habeas corpus relief, ordering resentencing and an opportunity to appeal conviction, where trial counsel neglected to file notice of appeal and defendant first learned of counsel's failure after the time to file a late notice of appeal had expired.  In re John C. Wolf, Petitioner v. Troy Steele, Warden, Southeast Correctional Center, Respondent, No. 29860 (Mo. App. S.D., July 17, 2009), Lynch, C.J. Full Summary and Other Cases

Employee Benefits Trial court erred when it entered judgment nunc pro tunc to "correct" decree which was not consistent with parties separation agreement providing that wife was to receive share of husband's retirement benefits determined as of the date of retirement.  Stephen J. Wilson, Appellant v. Cathy Jo (Wilson) Lilleston, Respondent, No. 69788 (Mo. App. W.D., June 30, 2009), Howard, J. Full Summary and Other Cases

Family Law Petition for declaration of maternity of a child of other persons.  Leslea Diane White, Individually and as Next Friend for C.E.W. and Z.A.W., Appellants v. Elizabeth Michelle White, n/k/a Elizabeth Michelle Crowe, Respondent, No. 69580 (Mo. App. W.D., June 23, 2009), Ellis, J. Full Summary and Other Cases

Health and Hospital Law Planned Parenthood must look to federal courts for relief.  Planned Parenthood of Kansas and Mid-Missouri, Inc., Appellant v. Margaret Donnelly, et al., Respondents, No. 69749 (Mo. App. W.D., July 31, 2009), Ellis, J. Full Summary and Other Cases

Insurance Law Notice of claim under claims made policy held sufficient.  Agnes Landry and Kevin Landry, Respondents v. Intermed Insurance Company, et al., Appellant, No. 69076 (Mo. App. W.D., June 16, 2009), Lowenstein, J. Full Summary and Other Cases

Juvenile Law (1) TPR for abuse/neglect is reversed where Mother's violent relationship with Father had no connection to any abuse of the children, where there is no evidence Mother knew or should have known of any of Father's purported abuse of the children, and where Mother obtained suitable housing and provided gifts to the children. (2) TPR for failure to rectify is reversed where there is unclear evidence at best regarding Mother's intentions with respect to continued contact with Father, where Mother generally complies with the service agreement, and where there is no evidence on any of the other factors. (3) TPR for parental unfitness is reversed where there is no evidence that Mother refuses to protect the children from Father or that Mother repeatedly violates court orders and safety agreements.  In the Interest of W.C., M.M., W.M. & G.M., No. 91354 (Mo. App. E.D., June 16, 2009), Norton, J. Full Summary and Other Cases

Local Government County commission not a proper party to Sunshine Law action; commissioners must be named in their official capacities.  Jay Purcell, Appellant v. Cape Girardeau County Commission, Respondent, No. 92213 (Mo. App. E.D., July, 21, 2009), Odenwald, J. Full Summary and Other Cases

Probate and Trust Law Judgment affirmed where Appellant did not establish a legislative preference for the appointment of a disabled or incapacitated person's siblings over a maternal aunt.  In Re: Stephanie Suzanne Banks, Incapacitated/Disabled, No. 91649 (Mo. App. E.D., May 12, 2009), Cohen, J. Full Summary and Other Cases

Property Law Sustaining a motion to enforce settlement is in reality a judgment granting specific performance in equity with broad deference to the trial court on credibility matters.  Mesa Owen and Mary Ellen Sisk, Plaintiffs/Respondents v. Dale Hankins, Defendant/Appellant, and Greg Cummings, Stacy Cummings and Marla B. Cantwell, Defendants/Respondents, No. 29440 (Mo. App. S.D., July 29, 2009), Barney, J. Full Summary and Other Cases

School Law and Higher Education Missouri law does not obligate an unaccredited school district to pay tuition for its children who attend an accredited school in another district when the students' parents are contractually obligated to pay the tuition under an agreement with the other district or the unaccredited school district has maintained an accredited school within its boundaries.  Jane Turner, Susan Bruker, Gina Breitenfeld and William Drendel, Appellants v. School District of Clayton, Board of Education of the City of St. Louis and The Transitional School District of the City of St. Louis, Respondents, No. 92226, (Mo. App. E.D., June 23, 2009), Sullivan, J. Full Summary and Other Cases

Tort Law Plaintiff assumed burden of proving the elements of an action where Plaintiff submitted a jury instruction that was not damages-only, despite being granted a directed verdict by the trial court; and it was not error for the trial court to deny submission of a not-in-MAI instruction informing the jury of the directed verdict.  Michael Stancombe, Plaintiff-Appellant v. Sally Davern, Defendant Ad Litem for Kenneth M. Davern, et al., Defendants-Respondents, No. 28636, (Mo. App. S.D., July 30, 2009), Bates, J. Full Summary and Other Cases