Missouri Court of Appeals Summaries of Opinions: May 28, 2005

St. Louis Daily Record & St. Louis Countian, May 28, 2005 by St. Louis Daily Record Staff

Civil Law

Agency; driving privileges

The Director of Revenue appeals from the trial court's judgment reinstating the driving privileges of petitioner, John P. Brown, after judicial review of the revocation based on his refusal to submit to a chemical test under section 577.041 RSMo (2000).

REVERSED AND REMANDED.

Division Two Holds: (1) Director made a prima facie case that petitioner (a) was arrested or stopped, (b) that the arresting officer had reasonable grounds to believe that petitioner was driving a motor vehicle in an intoxicated condition, and (c) that petitioner refused to submit to a chemical test. (2) Petitioner failed to rebut Director's prima facie case. In particular, petitioner failed to adduce any evidence from which a reasonable person could conclude that he was unconscious when he refused a chemical test.

ED84749 John P. Brown, Petitioner/Respondent, vs. Director of Revenue, State of Missouri, Respondent/Appellant

Appeal From: Circuit Court of Gasconade County, Hon. John Berkemeyer, Judge

Counsel for Appellant: Nicole Loether

Counsel for Respondent: Sidney Thayer, Jrs.

Opinion Author: Kathianne Knaup Crane, Judge

Opinion Vote: REVERSED AND REMANDED. Cohen, P.J. and Dowd, Jr., J., concur.

Civil Law

Contracts; evidence

Heritage Roofing, LLC sued Martin Fischer, seeking to recover money owed for roofing work that Heritage had performed at Fischer's request. Heritage filed a suit on account, but following a bench trial, the trial court amended the pleadings to conform to the evidence and entered judgment in favor of Heritage on a breach of contract theory. It awarded damages, attorney fees and interest. Fischer appeals.

AFFIRMED.

Division Three holds: The trial court did not err in recognizing that the parties tried Heritage's breach of contract claim by implied consent, and it properly amended the pleadings to conform to the evidence. There was substantial evidence to support the trial court's conclusion that Fischer orally approved the written proposal as a whole and, therefore, the terms of the parties' contract included the written provisions for recovering attorney fees and interest. Fischer has failed to demonstrate that the trial court abused its discretion in setting the amount of its award of attorney fees. The court's award of interest was not limited by section 408.020 RSMo 2000, since the parties agreed upon a different rate. Finally, the trial court did not err by giving Fischer only a $750 credit toward the amount he owed Heritage because of damage it caused to his building, since Fischer failed to present convincing evidence of any other damage figure.

ED84390 Heritage Roofing, LLC, Respondent vs. Martin Fischer, Appellant.

Appeal From: Circuit Court of St. Louis County, Hon. Patrick Clifford

Counsel for Appellant: Brian D. Klar

Counsel for Respondent: Mitchell D. Jacobs

Opinion Author: GLENN A. NORTON

Opinion Vote: AFFIRMED. Ahrens, J., and Baker, J., concur.

Civil Law

Insurance; policy coverage

State Farm Automobile Insurance Co. appeals the judgment declaring that its policy covers claims against its insured arising from his use of a baggage tug on the tarmac at the airport.

REVERSED.

Division Three holds: The insured did not meet his burden to prove coverage, which in this case depended on whether the tug involved in the accident was a car as defined in the policy-that is, designed for use mainly on public roads. The only evidence of the tug's original design showed that it was designed for hauling baggage and not for use on public roads, and there was no evidence that the tug was modified for use on public roads. Furthermore, the airport tarmac is not a public road under the common and usual meaning of that phrase.

ED84200 State Farm Mutual Automobile Insurance Company, Appellant, vs. Joseph M. Stockley, Donna McCarrison, Amanda Cox, Rebecca McCarrison, and Margerie McCarrison, Respondent

Appeal From: Circuit Court of St. Louis City, Steven R. Ohmer, Judge

Counsel for Appellant: Jason Corray, Eric Young and John Bitzer

Counsel for Respondent: Morry Cole

Opinion Author: Glenn A. Norton, Judge

Opinion Vote: REVERSED. Ahrens, P.J. and Baker, J, concurring

Civil Law

Labor and employment; evidence

The claimant appeals from the Labor and Industrial Relations Commission's decision, which held that he was fired for aggravated misconduct connected with his work and was disqualified from unemployment-compensation benefits.

REVERSED AND REMANDED.

Division Four holds: The Commission's decision is not supported by sufficient competent evidence because the employer failed to satisfy its burden to show that the claimant engaged in theft or other misconduct connected with his work.

ED85468 Deane F. Akers, Claimant/Appellant, vs. Barnes-Jewish Hospital, Employers, and Division of Employment Security, Respondent

Appeal From: Labor and Industrial Relations Commission

Counsel for Appellant: Brian Stokes

Counsel for Respondent: Marilyn Green and Larry Ruhmann

Opinion Author: Lawrence E. Mooney, Presiding Judge

Opinion Vote: REVERSED AND REMANDED. Crahan and Hoff, JJ., Concur.