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Updates in the law for the week

Criminal

Habeas Issues to Require Re-Sentencing with Parole Considered
United States Constitution requires a sentencing court to consider whether parole should ever be possible for a person under 18 years of age sentenced to life imprisonment. That requirement applies retroactively and supports collateral relief. Writ of habeas corpus issues to require re-sentencing that includes consideration of parole.
David Edwards, Petitioner, vs. Troy Steele, Superintendent, Eastern Reception, Diagnostic and Correctional Center, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED105946

DWI

Half-Hour Delay No Bar to Conviction
The terms "recklessly" and "caused" are commonly understood so an approved instruction using those terms without defining them did not mislead the jury. Evidence showing that appellant drove while intoxicated with his five-year-old child in the car included appellant's admissions and physical signs of intoxication. How well an arresting officer administered sobriety tests goes to the weight of the evidence, which is for the finder of fact to determine. Thirty minutes between crash and officer's arrival at crash scene did not negate that evidence. Court of Appeals declines plain error review on an insufficient record.
State of Missouri, Respondent, v. Francisco A. Lopez, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED104225

Employment

Plaintiff Claimed Inability to Work, Received Damages for Lost Wages
On a claim of retaliation for filing a disability discrimination complaint, jury found for plaintiff. Elements of judicial estoppel include that the party to be estopped was successful on the theory to be estopped, which did not occur when that party was successful on that theory in circuit court, but was reversed in the Court of Appeals. Statute provides that a workers' compensation ALJ who is totally incapable of performing his duties shall receive a disability benefit from the pension system, but does not provide that receiving a disability benefit from the pension system proves that the ALJ is totally incapable of performing his duties. Circuit court did not err in denying remittitur of compensatory damages because the record included evidence from which the jury could find that plaintiff was still capable of working, evidence to the contrary was for the jury to weigh, including plaintiff's claims in other procedures that he was incapable of working. "While [plaintiff]'s trial testimony might seem incredible . . . , the compensatory damages verdict suggests the jury found [plaintiff]'s trial testimony that he could work for an additional 20 years credible. The weight and credibility of the evidence is a jury determination." Nevertheless, evidence of plaintiff's representations of inability to work in such other proceedings rendered plaintiff's evidence of employer's bad motive less than clear and convincing for punitive damages. Judgment was final because the only claims that it did not address were claims abandoned by plaintiff, and later judgment noting defendant's agreement to punitive damages award after remittitur was merely a correction of the final judgment, so circuit court lost authority to make any orders 30 days after final judgment including an award of post-judgment interest.
Matthew D. Vacca, Plaintiff/Respondent/Cross-Appellant, v. Missouri Department of Labor and Industrial Relations, Division of Worker's Compensation and Brian May, Defendants/Appellants/Cross-Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED104100

Insurance

Other Insurance Set Off
Circuit court did not err in issuing declaratory judgment, stating that motorcycle policy's declarations page unambiguously subjected underinsured motorist coverage to limitations elsewhere in the policy, which included amounts paid to insured for insured's injury.
PROGRESSIVE MAX INSURANCE COMPANY, Plaintiff-Respondent, v. MATTHEW HOPKINS, Defendant-Appellant.
Missouri Court of Appeals, Southern District - SD34927

Local Government

No Tortious Interference with Void Contract
Statute requires that certain entities and any "other municipal corporation" shall make a contract only through a person authorized in writing. The term "other municipal corporation" is not unconstitutionally vague, because case law defines it to include local public entities that perform governmental functions, which all persons contracting with local government are held to know. When respondent filed a motion for summary judgment under that statute, and established that no written authorization for the contract existed, it negated an element of appellant's claim for tortious interference with contract. Appellant failed to raise any genuine issue as to that material fact, and did not charge tortious interference with a business expectancy, so Court of Appeals affirms circuit court's summary judgment for respondent.
Rail Switching Services, Inc., Appellant, vs. Marquis-Missouri Terminal, LLC, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED105242

Tax

No Cost Valuation Without Depreciation
Statutes governing assessment of personal property require cost approach for valuation, and that cost approach must include depreciation. Assessor erred when omitting depreciation from cost approach, and so did State Tax Commission, notwithstanding other evidence that supported the same valuation. "Put simply, an expert witness cannot be employed to erase a clear error in methodology."
Union Electric Company, d/b/a Ameren Missouri, Petitioner/Appellant, vs. Bob Adams, Assessor, Cape Girardeau County Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED105477


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Affordable Legal Services of Thomas Sandifer
225 S. Meramec Ave. Suite 925
Clayton, MO 63105

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