Laura Denvir Stith , Judge . Crescent Plumbing Supply Company petitions for review of the decision of the Administrative Hearing Commission ("AHC") holding its claim for refund of sales tax untimely under section 144.190.2. 1 That section provides a three-year window from the date of overpayment to seek a refund. Crescent admits it filed its refund request more than three years after remitting the sales tax but argues the refund request was timely because 12 C.S.R. 10-102.016(2)(A)...
W. Brent Powell , Judge . Heather Shallow, Michael Bishop, and Todd Bishop (collectively, Plaintiffs) appeal the circuit court's judgment, after trial by jury, in favor of Dr. Richard Follwell in the wrongful death medical negligence case of Plaintiffs' mother, Saundra Beaver. Plaintiffs alleged Follwell negligently caused Beaver's death when he perforated Beaver's bowel during a hernia repair surgery and failed to recognize and treat the bowel after the surgery. On appeal, Plaintiffs argue...
Mary R. Russell , Judge . The Board of Trustees of the Missouri Petroleum Storage Tank Insurance Fund, by and through the Missouri attorney general (collectively "the State"), appeals the circuit court's judgment dismissing its claims of breach of contract and, in the alternative, unjust enrichment. Respondent Pilot Travel Centers, LLC, argues the State's appeal is untimely and must be dismissed. In the alternative, it contends the circuit court correctly determined neither the Board nor...
Paul C. Wilson , Judge . The Missouri Conservation Commission ("Commission"), its individual members, 1 and the Missouri Department of Conservation ("Appellants") appeal the judgment of the circuit court in this declaratory and injunctive relief action brought by Donald Hill and Oak Creek Whitetail Ranch, LLC, Travis Broadway and Winter Quarters Wildlife Ranch, LLC, and Kevin Grace and Whitetail Sales and Service LLC ("Respondents"). This Court has jurisdiction under article V, section...
Paul C. Wilson , Judge . Staff of the Public Service Commission ("Commission") filed a complaint alleging Union Electric Co. ("Ameren") violated a Commission rule when it failed to use certain 2014 data to calculate Ameren's "net shared benefits" under an energy-efficiency plan approved by the Commission in 2012. Staff and Ameren filed motions for summary determination and, following briefing and argument, the Commission granted Staff's motion for summary determination. Ameren appealed, and...
Patricia Breckenridge , Judge . Representative Courtney Curtis 1 appeals from the circuit court's judgment quashing its preliminary order in mandamus. Rep. Curtis asserts he is entitled to mandamus relief because the Missouri Democratic Party, its chair, Stephen Webber, and the Missouri Secretary of State John "Jay" Ashcroft had a ministerial duty to accept his $100 filing fee and declaration of candidacy for the 14 th senate district pursuant to section 115.357. 2 Section 115.357...
Mary R. Russell , Judge . Robert Casey died from mesothelioma caused by repeated exposure to asbestos in the workplace. Before his death, Mr. Casey filed a claim for workers' compensation benefits, with which his widow, Dolores Murphy, proceeded following his death. The Labor and Industrial Relations Commission determined that because Mr. Casey's exposure to asbestos occurred while he was employed by E.J. Cody Company, Inc. ("Employer"), its insurer, Accident Fund National Insurance Company...
Paul C. Wilson , Judge . Following a work-related injury, Andrew Dickemann ("Dickemann") filed a workers' compensation claim against his employer, Costco Wholesale Corporation ("Costco"). A final award granted Dickemann permanent total disability benefits to be paid weekly. Two years later, the parties agreed Costco would make a lump sum payment to fully satisfy Dickemann's award. The parties requested that the Labor and Industrial Relations Commission ("Commission") approve this agreement,...
Paul C. Wilson , Judge . BNSF Railway Company ("BNSF") appeals the judgment of the circuit court, entered upon a jury verdict, in favor of Sherry Spence ("Spence") on her wrongful death cause of action for the death of her husband, Scott Spence ("Decedent"). This Court has jurisdiction under article V, section 10 of the Missouri Constitution, and the judgment is affirmed. Background Spence sued BNSF for the wrongful death of Decedent, who was killed in 2012 after a BNSF train struck his...
Laura Denvir Stith , Judge . Appellant Marilyn Hink appeals the Scott County circuit court's judgment dismissing her medical malpractice case without prejudice for failure to file an "affidavit of merit" under section 538.225. 1 She argues section 538.225's affidavit requirement violates Missouri's open courts provision as well as her right to trial by jury and the principle of separation of powers under the Missouri Constitution. See Mo. Const. art. I, 14; id. art. I, 22(a); id. art....
Patricia Breckenridge , Judge . Keith Jackson filed an action against the owners and operators of LifeSmile Dental Care (collectively, "LifeSmile") and attorney Dennis J. Barton III. The petition alleged Mr. Barton's debt collection actions violated the Fair Debt Collection Practices Act (FDCPA). The petition further alleged LifeSmile and Mr. Barton violated the Missouri Merchandising Practices Act (MMPA). The alleged violations arose out of Mr. Barton's attempts to collect payment Mr....
Patricia Breckenridge , Judge . Relators Dr. Patrick Goldsworthy, Dr. Aston Goldsworthy and Patrick Goldsworthy D.C., P.C., ("doctors") seek a writ from this Court prohibiting the respondent, the Honorable James F. Kanatzar, from taking any action other than granting their motion to dismiss the underlying wrongful death suit as barred by the statute of limitations. Specifically, the doctors assert the plaintiffs' wrongful death claims are time-barred by section 537.100 1 because the...
Paul C. Wilson , Judge . Matthew Fogerty ("Fogerty") filed a personal injury suit against his co-employee, Larry Meyer ("Meyer"), for injuries he sustained while they were working together to build a fountain. The trial court sustained Meyer's motion for summary judgment. Fogerty appealed, and this Court has jurisdiction under article V, section 10, of the Missouri Constitution. The circuit court's judgment is affirmed. Background Fogerty was employed by Wright Construction Company ("...
W. Brent Powell , Judge . Owner-Operator Services Inc. appeals the circuit court's judgment in favor of Amie Wieland for her claim of negligence alleging her employer, Owner-Operator, breached its duty to protect her from the criminal act of a third person on its premises. Owner-Operator argues the circuit court erred in submitting a verdict director to the jury that was not supported by substantial evidence and in allowing Wieland to make arguments to the jury that misstated the law as...
