First half of 2015 sees few splashy opinions

The Missouri Supreme Court is on track to have an especially prolific year with 44 opinions handed down as of June 16. But the high court, as well as the Court of Appeals and the 8th U.S. Circuit Court of Appeals, has been a little light on summer blockbusters.

Instead, Missouri’s appellate courts have alternated between a wait-and-see approach on hot-button issues and a concentration on workhorse-type opinions — applying, interrupting and clarifying the law, rather than making new law.

Early in the year, for example, the high court upheld a death penalty in a murder case without ruling on the controversial issue of “pinging.” The defendant in State v. Hosier argued that tracing his whereabouts through his cellphone was a Fourth Amendment violation, but the court found that the evidence seized from the man’s vehicle was admissible on other grounds.

And despite, or maybe because of, how quickly the law is evolving in the gay marriage debate in other parts of the country, Missouri courts are lying low. In February, the Missouri Supreme Court issued an extremely narrow decision confined to the issue of jurisdiction in the same-sex divorce case of M.S. v. D.S.

In April the 8th Circuit announced that it was deferring arguments and decisions on four same-sex marriage cases.

In criminal law, the Court of Appeals is working on interpreting and defining the law on lesser-included offense instructions, repeatedly citing a pivotal case from June of last year, which changed the law in that area.

The Missouri Supreme Court held in State v. Jackson, a 65-page opinion, that prejudice is presumed when a trial court fails to give a requested lesser-included offense instruction that is supported by the evidence.

The Western District in State v. Sanders and the Eastern District in State v. Kuehnlein applied Jackson straightforwardly. Both held that the convictions of criminal defendants must be reversed because the trial court had refused to instruct the juries on offenses that consist of a subset of the elements of the charged offense.

Although the case led to predictions that lesser-included offense instructions would be given whenever requested, the Southern District affirmed a trial court’s refusal to give a nested-offense instruction in State v. Prine. The defendant, who was convicted of first-degree robbery, sought an instruction for second-degree robbery, but his only claim in support was that he was intoxicated when he committed the crime. The appellate court reasoned that voluntary intoxication was a legally insufficient basis for the request.

And the plot thickened with an Eastern District ruling in March that interpreted the Jackson decision in a post-conviction context. The defendant in an assault case argued that his attorney was ineffective for failing to submit a lesser-included offense instruction, but the appellate court agreed that the attorney’s decision not to request the offense was reasonable trial strategy. The opinion, McCrady v. State, held that counsel does not have a duty to ask for an instruction that would undermine the defense theory at trial even if the evidence supported the instruction.

Last year the high court handed down 73 opinions, compared to 75 in 2013, 83 in 2012 and 69 in 2011. Summaries of these opinions are included in our archives at www.molawyersmedia.com.

Arbitration

Following a long trend of Missouri’s appellate courts’ construing arbitration clauses against the drafter, two recent high court opinions have upheld the clauses. To do so last month in Eaton v. CMH Homes, in which a manufactured-home buyer brought claims of fraud and breach of contract against the seller, the court severed an anti-waiver provision and returned to traditional contract principles by looking at the contract as a whole to determine whether consideration was adequate.

In May, a divided Supreme Court found an arbitration clause to be valid in an employment discrimination case brought by an employee of the St. Louis Rams. The court rejected, however, a contract provision calling for the league commissioner to serve as arbitrator. The case is State ex rel. Todd Hewitt v. Kerr.

The Western District interpreted the “gateway issue” in two arbitration cases this year, looking at whether parties can agree to arbitrate the issue of whether to arbitrate. In 50 Plus Pharmacy v. Choice Pharmacy Systems LLC, the court said no because there was no clear and unmistakable delegation provision allowing an arbitrator to make the decision.

However, in Ellis v. JF Enterprises LLC, a case brought by a car buyer under the Missouri Merchandising Practices Act, a delegation clause in the arbitration agreement reserved the gateway issue for arbitration, and the court found the arbitration agreement to be severable and separately enforceable from the underlying contract.

Cases with impact

The impact of some appellate decisions from the first half of 2015 will be felt in their specific practice areas.

In January a handful of opinions from the Missouri Supreme Court targeted construction law. Three rulings limited sales-tax exemptions by prohibiting construction businesses from claiming exemptions on equipment used in building and road construction.

In a case long awaited by the construction industry, the high court held that tax collectors must give mechanics’ lienholders personal notice before selling property at tax sales in In the Matter of Foreclosure Liens for Delinquent Taxes v. Parcels of Land Encumbered with Delinquent Land Tax Liens. The decision applies to mechanics’ lien claims for which a judgment has been obtained and puts mechanics’ lienholders in a similar position to mortgage holders.

In June, the Supreme Court held that a woman whose two children were killed by an electric current in the Lake of the Ozarks could not sue the lake’s owner, Ameren Missouri. The court in Anderson v. Union Electric Company found that the state’s Recreational Use Act, which protects landowners who allow the public to use their property for recreation without charge, provided immunity even though the plaintiff’s family paid a use fee for their dock.

Jurisdiction over consumer actions involving online purchases are a hot topic around the country. In February, the Missouri Supreme Court held that a Texas car dealership selling on eBay could be subject to personal jurisdiction in Missouri.

In Andra v. Left Gate Property Holding Inc., the court used traditional minimum contacts analysis to reverse the trial court’s dismissal of an action brought by a Missouri man against the dealership. The high court found that although only a small percentage of the dealership’s sales were in Missouri, substantial non-Internet contacts, such as mail and telephone correspondence, supported jurisdiction.

A remaining issue is whether an out-of-state, non-business seller could be brought into a Missouri court.

First impression

In a decision that overlaps the family law and employment practice areas, the Eastern District found in a case of first impression that a father’s employer could be sued for failing to comply with orders to withhold income for child support. In Department of Social Services v. J&J Industrial Supply Inc., the appellate court affirmed the trial court’s judgment for the Family Support Division, finding that the father did not need to be joined as a party to the action.

Missouri appellate courts continue to define what is an accident under workers’ compensation law. This time the Western District eased the burden required to show an accident. The court held in a case of first impression that a worker who tore tendons in his shoulder lifting himself into his truck was entitled to benefits.

The court said the injury fit the definition of “unusual strain,” which is included in the statutory definition of accident, even though it was from a routine activity.