Courts Bulletin - 13-February

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
Private investigator who successfully challenged disciplinary action before AHC entitled to attorney fee award, but only for AHC action, and only at statutory rate. Board of Private Investigation Examiners v. Gurley, No. 12AC-CC00555 (12th Cir. Ct., Cole County, January 13, 2013), Betem, J.
Full Summary and Other Cases  

 
Administrative Law
Raise all issues at agency level. Marion Tibbs, Assessor Butler County, Missouri v. Poplar Bluff Associates I, L.P., No. 31385 (Mo. App. S.D., January 9, 2013), Lynch, J.
Full Summary and Other Cases  

 
Civil Practice and Procedure
Third party plaintiffs do not need to plead fault to sustain a claim against third party defendant. Travelers Property Casualty Company of American and Jacobsmeyer-Mauldin Construction Company v. The Manitowoc Company, Inc. v. United States Steel Corporation, as Successor-in-Interest to Lonestar Technologies, Inc., a/k/a Lonestar Steel, No. 92429 (Mo. banc, January 29, 2013), Stith, J. 
Full Summary and Other Cases  

 
Criminal Law
Juror did not intentionally fail to disclose that he was a member of the venire panel in Defendant’s prior trial for assault and armed criminal action; no abuse of discretion in trial court’s denial of claim. State v. McFadden, No. 89429 (Mo. banc, January 29, 2013), Teitelman, C.J.
Full Summary and Other Cases  

 
Environmental and Energy Law
The Missouri Public Service Commission’s order approving the 2008-2009 actual cost adjustment rates for Atmos Energy Corporation was upheld on appeal after challenge by the Office of Public Counsel that PSC’s order was not supported by competent and substantial evidence, was unlawful and unreasonable because it violated the Affiliate Transaction Rule found at 4 C.S.R. 240-40.016. Atmos Energy, et al. v. Public Service Commission, No. 74916 (Mo. App. W.D., December 18, 2012), Ellis, J.
Full Summary and Other Cases

 
Family Law
Potential pathway to third party custody by non-relative; claim that biological parents are unfit, unable or unwilling to be child’s custodian and the best interests of the child would be served by awarding third party custody. In the Matter of T.Q.L., M.M.A. v. L.L., No. 92442, (Mo. banc, December 18, 2012), Russell, J.
Full Summary and Other Cases  

 
Juvenile Law
Failure to strictly comply with § 211.455.3, RSMo, by admitting the social study and investigation into evidence in a termination of parental rights case when it was not provided to the parties at least 15 days prior to trial constitutes prejudicial error, requiring reversal and remand for new trial. In Interest of Z.M., No. 98746 (Mo. App. E.D., February 26, 2013).
Full Summary and Other Cases  

 
Medical Malpractice
Dental malpractice – defense verdict. On appeal, where plaintiff did not make a motion to reopen the evidence, and failed to make an offer of proof, the trial court would not be convicted of error on appeal in excluding evidence of injury to the mouth of another patient by the defendant. On cross-appeal by the defendant, the trial court properly exercised its discretion in refusing to award court costs for the time of a defense expert who was deposed only nine days before trial due to the expert’s unavailability, and who did not testify at trial. Calzaretta v. Willard, No 31499 consolidated with 31516 (Mo. App. S.D., January 24, 2013), Francis, J.
Full Summary and Other Cases  

 
Public Service Commission
Action estopped. State of Missouri ex rel., MoGas Pipeline, LLC v. Public Service Commission, No. 75109 (Mo. App. W.D., January 15, 2013), Witt, J.
Full Summary and Other Cases  

 
Tort Law
Where fan was struck in the face with a hot dog thrown by team’s mascot, trial court erred in allowing defense of primary implied assumption of risk because being hit in the face with a hot dog is not the type of risk inherent in attending a baseball game. There was sufficient evidence to support jury instruction on comparative fault. Plaintiff could not assert independent claim for negligent supervision and training because his negligence claim also rested on imputed liability, and liability for the same action may not be imputed to the employer on more than one basis. John Coomer v. Kansas City Royals Baseball Corp., No. 73984 and 74040 (Mo. App. W.D., January 15, 2013), Newton, P.J.
Full Summary and Other Cases  

 
Workers' Compensation
A late answer to a claim for compensation results in the maximum rate of compensation to apply for permanent partial disability if the claim factually alleged the claimant’s average weekly wage to be the “max rate.” T.H. v. Sonic, No. 98507 (Mo. App. E.D., December 18, 2012), Norton, J.
Full Summary and Other Cases