University of Missouri School of Law Scholarship Repository
Faculty Publications Faculty Scholarship
1-2019
References to Television Shows in Judicial Opinions and Written Advocacy (Part I)
Douglas E. Abrams University of Missouri School of Law, [email protected]
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Recommended Citation Douglas E. Abrams, References to Television Shows in Judicial Opinions and Written Advocacy (Part I), 75 Journal of the Missouri Bar 25 (2019). Available at: https://scholarship.law.missouri.edu/facpubs/958
This Article is brought to you for free and open access by the Faculty Scholarship at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. WRITING IT RIGHT REFERENCES TO TELEVISION SHOWS IN JUDICIAL OPINIONS AND WRITTEN ADVOCACY (PART I)
Douglas E. Abrams1
“Think of the poor judge who My previous Journal articles have concerned examples drawn from baseball, football, and other prominent sports whose basic is reading . . . hundreds and rules, strategies, and terminology are generally well-known to 7 hundreds of these briefs,” says lawyers and judges. This article concerns examples drawn from well-known television shows. Chief Justice John G. Roberts, In written opinions that decide cases with no claims or defenses concerning television programming or the television Jr. “Liven up their life industry, judges often help explain substantive or just a little bit . . . with procedural points with references to themes and ictional characters from well-known television something interesting.”2 dramas, situation comedies (“sitcoms”), and even reality shows. In civil and criminal cases, the In 1942, shortly before he courts’ careful use of television references invites ascended to the Supreme advocates to use such references carefully in their written submissions. Court bench, D.C. Circuit Some judges use references to television shows that regularly feature lawyers and law enforcement; Judge Wiley B. Rutledge other judges discuss shows that mention the law rarely or not at all. Some of the shows (such as similarly advised Perry Mason and Dragnet) feature characters and advocates that “[i]t helps themes that appeared earlier in novels or on radio, Douglas E. Abrams but recollections of today’s judges and lawyers to break the monotony likely stem primarily from the hit television shows, of the printed legal page to add even years after the cited shows left the air. This is a two-part article. This Part I opens with brief a bit of life now and then.”3 discussion of television’s profound decades-old inluence on American culture, a sturdy foundation for judges’ conidence Justice Antonin Scalia urged brief writers to “[m]ake it that readers will connect with references to popular shows that interesting.”4 “I don’t think the law has to be dull.” “Legal briefs dominated the airwaves as today’s generation was growing up. are necessarily illed with abstract concepts that are diicult This Part then surveys the array of television dramas that appear to explain,” Justice Scalia continued.5 “Nothing clariies their in federal and state judicial opinions. meaning as well as examples” that “cause the serious legal points In the Journal’s next issue, Part II will survey the array of you’re making to be more vivid, more lively, and hence more sitcoms and reality shows that appear in judicial opinions. memorable.”6 Part II will conclude by discussing why advocates should feel In the Journal of the Missouri Bar, I have written about how comfortable following the courts’ lead by carefully referencing lawyers can “liven up” their advocacy, and add “a bit of life now television shows to help sharpen substantive and procedural and then,” with examples drawn from cultural markers that help arguments in the ilings they submit. deine American life. Lawyers would follow the lead of federal and state judges, who often spice their opinions with these Television’s Inluence on American Culture markers. “In many ways over the past half-century, the history of
@MoBarNews @MoBarNews 25 television has become the history of America,” says historian “electronic prodigy endowed with the capacity to inluence an Steven D. Stark.8 Television programming, he explains, “has entire nation.”25 been inluential – superseding school, and sometimes even In 1961, Federal Communications Commission chairman the family, as the major inluence on our social and moral Newton N. Minow recognized television’s emerging cultural force development. It is fair to say that there have been two eras in when he sharply criticized the medium as a “vast wasteland,” America: Before Television (BT) and After Television (AT).”9 marked by “a procession of game shows, formula comedies Contemporary writers and readers of briefs and judicial opinions about totally unbelievable families, blood and thunder, mayhem, grew up in the latter era, marked by television’s dominance in violence, sadism, murder, western bad men, western good men, American homes from coast to coast. private eyes, gangsters, more violence, and cartoons.”26 “When television is good, nothing — not the theater, not Transforming American Life the magazines or newspapers — nothing is better,” Minow With television still in its infancy, only nine percent of U.S. concluded, “[b]ut when television is bad, nothing is worse.”27 households owned at least one set in 1950. Two historians say, Television took a sharp turn toward the good on September however, that the new medium was already “inding its place 2, 1963, when the three major networks expanded their nightly in the American living room (and bedroom and dining room newscasts from 15 minutes to half an hour. Describing this new and kitchen and den and basement and hospital ward and bus sinew that would help bind the nation together, White called the station).”10 expanded coverage “as signiicant in American history as the From 1954 to 1956, about 10,000 U.S. households a day were Golden Spike that linked the Union Paciic and Central Paciic installing a television set for the irst time.11 By 1955, 13 percent to give America is irst continental railway in 1869.”28 of households owned two or more sets and some owned as many To paraphrase Minow, television emerged as an indispensable as six.12 The percentages of TV ownership grew each year, force for good when the networks steadied the wounded reaching 64.5 percent of American households in 1955 and 85.9 nation in the four fateful days immediately after President percent in 1959.13 By the end of the 1950s, households with John F. Kennedy’s assassination on November 22, 1963. television sets watched an average of ive hours and two minutes Journalist White reported that most Americans (Manchester’s of programming daily.14 “irst television generation”) watched virtually non-stop. The “Nothing,” wrote journalist David Halberstam, “changed the networks responded with tasteful, informative around-the- culture and the habits of Americans more than the coming of clock broadcasting uninterrupted by commercial advertising. television.”15 Pulitzer Prize-winning historian Daniel J. Boorstin Television, said White, “stabilized a nation in emotional shock said that the medium “opened another world [that] would and on the edge of hysteria.”29 transform American life more radically than any other modern With its demonstrated capacity to command a national invention except the automobile. . . . Just as the printing press audience by the 1960s, television remained on the cutting edge ive centuries before had begun to democratize learning, now the of social change. “The civil rights revolution in the South,” write television set would democratize experience.”16 journalists Robert J. Donovan and Ray Scherer, “began when Television, writes legal historian Lawrence M. Friedman, a man and the eye of the television ilm camera came together, became one of the “powerful forces unifying the economy.”17 giving the camera a focal point for events breaking from state to Halberstam called television a “true national phenomenon” state, and the man, Martin Luther King, Jr., high exposure on whose power “revolutionized American society” by “wir[ing] the television sets from coast to coast.”30 entire country together visually.”18 Television’s growing presence in American homes, writes “A Television Nation” presidential historian Jon Meacham, gave Sen. Joseph In 1969, White reported that television had emerged as “the McCarthy “nearly unlimited possibilities to dominate the public greatest of all the new media of American culture,” a common consciousness” during his few years of national tumult in the denominator that “fused all America into one audience” and irst half of the 1950s.19 Meacham adds that the possibility of “held all America captive.”31 With audiences of 40 or 50 million public domination led President Dwight D. Eisenhower to avoid viewers from coast to coast, White added, the networks’ nightly overexposure: “I can think of nothing more boring, for the newscasts alone had become “for the masses, the mirror of the American public,” said the president, “than to have to sit in their world.”32 living rooms for a whole half hour looking at my face on their Television’s inluence on American culture continued growing. television screens.”20 The percentages of U.S. households owning at least one TV set rose from 87.1 percent in 1960 to 95.0 percent in 1969, and “The First Television Generation” from 95.2 percent in 1970 to 98.0 percent in 1978.33 The average In 1961, Pulitzer Prize-winning journalist and historian amount of household time spent daily watching television rose Theodore H. White observed that in the prior decade, television from ive hours and six minutes in 1960, to ive hours and 48 had “exploded to a dimension in shaping the American mind minutes in 1969.34 By 1978, the average daily amount stood at that rival[ed] that of America’s schools and churches.”21 six hours and ten minutes,35 and “America’s infatuation with The nation was raising what National Humanities Medal- television”36 led adults to spend about 28 percent of their leisure winning writer William Manchester called “the irst television time watching the set.37 Americans, said journalist Halberstam, generation.”22 Historians report that television had become now had television “connecting them to the world,” and the “[o]ne of the most powerful of all postwar entertainments,”23 United States had become “a television nation.”38 indeed “an American habit and a virtual necessity,”24 and an By 2007, the average household’s daily dose of television had
26 mobar.org risen to more than eight hours.39 The average child graduates from high school after spending 13,000 hours in school and 25,000 hours in front of the TV set.40 In the 2017-2018 season, 96.5 percent of U.S. homes owned a television, more homes than have indoor plumbing.41 By the 1980s, Americans – including judges and advocates – had either grown up during what Manchester called the “Age LEGAL INTERPRETERS of Television,”42 or had become increasingly familiar with TV SIGN LANGUAGE & 100+ programming throughout adulthood. In 1989, one ilm critic wrote that “[g]iven the sheer breadth of its appeal, television FOREIGN LANGUAGES tends to address – and help create – widely held beliefs that permeate the culture.”43 ON-SITE • OVER THE PHONE Television Dramas “Writing,” said Sir Ernest Gowers, “is an instrument for DOCUMENT TRANSLATION conveying ideas from one mind to another; the writer’s job is to Interpreters & Translators for courts, make his reader apprehend his meaning readily and precisely.”44 depositions, and client meetings Federal and state judges sometimes convey ideas with careful references to television dramas, situation comedies, and reality shows. We turn here to dramas, before turning to the other two genres in Part II of this article next time. Contact Kim Chao Perry Mason “Ever since the days of Perry Mason, viewers have always 913.491.1444 locked to shows about lawyers.”45 Prominent among the “lock” [email protected] are lawyers themselves, including Justice Sonia Sotomayor who, during her 2009 Senate conirmation hearings for a Supreme www.TranslationPerfect.com Court appointment, cited Perry Mason as the childhood inluence that led her to pursue a career in law.46 Perry Mason has been called “America’s lawyer,”47 and his dramatic television series remains the lawyers show discussed depended on “the occurrence of a ‘Perry Mason’ moment in the most often in judicial opinions.48 To Supreme Court judges and courtroom. . . . [I]n the Court’s experience, such moments are other Americans, the name “Perry Mason” remains almost usually conined to ictional courtrooms.”59 synonymous with the term “lawyer.”49 Indeed, in a National Law The U.S. Court of Appeals for the 1st Circuit observed that Journal poll conducted in 1993 (nearly 30 years after the show defense counsel Mason “possessed an uncanny aptitude for left prime time for syndication), the ictional Mason inished exonerating clients by casting blame elsewhere.”60 Representing second to F. Lee Bailey as the nation’s most admired lawyer.50 clients whose guilt appeared likely for much of the hour, he Bailey might not have won the honor after his controversial role would defeat prosecutor Hamilton Burger with dogged personal as a defense counsel in the O.J. Simpson criminal trial shortly investigation, usually climaxed by Mason’s dramatic cross afterwards. Nor would Bailey’s lofty stature have survived his examination that led a key witness or a spectator to break down 2001 disbarment in Florida,51 and the later unwillingness of on the stand or elsewhere in the courtroom, often with a tearful Maine bar authorities to license him.52 confession.61 Hence, the “Perry Mason moment.” Defense counsel Perry Mason’s character originated in Erle Courts citing Perry Mason recognize that during cross- Stanley Gardner’s detective novels and had a successful run in examination in actual criminal and civil proceedings, witnesses four movies and on radio before Raymond Burr played the title do sometimes break down with key concessions, unanticipated role in 271 television episodes that aired from 1957 to 1966.53 information, or tearful confessions.62 But courts also cite Perry Citing Perry Mason’s enduring image as the “lawless”54 lawyer Mason for the proposition that these climaxes remain “very who never lost a case,55 most judicial decisions discussing the rare”63 because well prepared counsel normally anticipate the show presume readers’ understanding, without explanation in course of the trial in the relatively few cases that do not end with text or footnote. Only a few decisions provide brief explanations pretrial settlement or plea bargain, and because contemporary to orient readers who might be too young to recall the television procedure emphasizes pretrial discovery and favors conferences series, or who might not follow today’s re-runs.56 with the court outside the jury’s presence or earshot when Typical in presuming readers’ understanding is Spotted Cat, surprise does surface.64 Courts frequently call attention to LLC v. Bass, which disqualiied the plaintif’s counsel in a damage Perry Mason defenses65 and Perry Mason moments,66 but also action on the ground that counsel would be a necessary trial recognize (according to the Minnesota Court of Appeals) that witness.57 The federal district court rejected the plaintif’s such twists and turns “tend only to happen on late night TV if speculation that the defendant “may, upon taking the oath at your station carries reruns.”67 trial, suddenly decide to fully agree with Plaintif’s version of events.”58 The court found the speculation remote because it continued on page 50.
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*Terms, conditions, and exclusions apply. Call or visit us online for details. MoBar 1-888-253-6013 CLE www.mobarcle.org RELEVANT | RESEARCHED | RESPECTED ETHICS REFERRALS: WHAT YOU NEED TO STAY OUT OF ETHICAL TROUBLE Nancy Ripperger1
Referral marketing can be a very Fee Sharing with Non-Attorneys Is Prohibited By Rule 4-5.4(a) desirable source of new business An attorney should not agree to split or share a fee with a non- attorney. Rule 4-5.4(a) prohibits the sharing of fees with non- for an attorney. The American lawyers except in certain limited circumstances. This prohibition Bar Association (“ABA”) has noted includes agreements with non-attorneys to solicit clients in return for a share of the fee. that encouraging referrals in a Fee Sharing Between Attorneys Requires Strict systematic and structured way Compliance with Rule 4-1.5(e) is the most cost-effective and Despite the limitations of Rule 4-7.2 (c), an attorney can split or share fees with another attorney if certain conditions are met. productive marketing that an Missouri Supreme Court Rule 4-1.5(e) addresses the division of fees between attorneys who are not from the same irm. The irst 2 attorney can do. requirement of Rule 4-1.5(e) is that both attorneys must retain some level of responsibility for the representation. The courts are very strict in applying this requirement. Failing to comply with Referring out a matter also can be beneicial to an attorney the responsibility requirement can subject an attorney to both if a matter is outside of the referring attorney’s usual practice disciplinary action and the loss of fees. area or outside the referring attorney’s geographical location. For example, in Risjord v. Lewis,5 an attorney who had handled The referring attorney may be able to share in the fees but does a personal injury action brought a declaratory action to deter- not have to learn a new area of law, obtain licensure in another mine whether the referring attorney was entitled to any of the at- jurisdiction. or travel long distances to handle the matter. torney fees. The fee agreement with the client provided that the
While referrals can be beneicial to both the referring and referring attorney was entitled to 40 percent of the attorney fees. receiving attorney, referrals are not without ethical risks. Before The Court struck down the fee agreement, noting that “merely making or accepting a referral, an attorney should ensure that recommending another lawyer or referring a case to another the referral complies with the Rules of Professional Conduct. lawyer and failing to do anything further” does not entitle the This article will set out some of the common ethical issues referring attorney to any portion of the fees.6 related to referrals. Rule 4-1.5(e) sets forth two situations whereby the referring attorney retains the requisite level of responsibility needed to Kickbacks, Along With Nominal Nonmonetary Gifts, share in the fees. The irst situation is where the referring at- Are Prohibited torney continues to provide legal services to the client along with
There is much written about what an attorney can do to the other attorney. In other words, the referring attorney acts as develop and maintain a referral network to increase business. co-counsel in the matter. In this situation, the division of the fees One of the most common suggestions for an attorney to keep must be proportional to the services performed by each attor- and increase a referral network is for the attorney to show his or ney. Rule 4-1.5 (e)(1). Courts generally look to see whether the her appreciation to the referring client, third party, or attorney. division of fees bears a reasonable correlation to the amount or Sending a thank you note to any of the above referring sources value of the services rendered by the attorney. Courts will strike is ethically acceptable. However, sending a monetary fee or gift down a fee division if there is a glaring imbalance between a to an attorney, client or third party for a referral is prohibited lawyer’s share of the fee and the value of his or her services.7 For by Supreme Court Rule 4-7.2(c). It provides that a lawyer shall example, in Eng v. Cummings, McClorey, Davis & Acho,8 the referring not give anything of value to a person for recommending the 3 attorney was seeking one-third of the attorney fees. The Court lawyer’s services. It does not contain an exception for nominal, noted that passing on updates to the client from the trial attorney nonmonetary gifts.4 Thus, an attorney is prohibited from giving and providing counseling about the trial process did not consti- the referral source a “substantial monetary kickback” and from tute one-third of the work. more innocuous activities such as taking the referral source to In the second situation, the referring attorney generally is not dinner or sending the referral source a nice bottle of wine to required to perform any actual work on the referred matter.9 show his or her appreciation for the referral. 28 mobar.org However, the referring attorney must assume “joint responsi- share of the fees each attorney will receive. Comment 7 to Rule bility” for the representation. Comment 7 to Rule 4-1.5 states 4-1.5(e).15 However, to avoid fee disputes between the attorneys “joint responsibility entails both inancial and ethical responsibil- it is recommended that the attorneys have a written agreement ity for the representation as if the lawyers were associated in a which sets out both parties’ responsibilities in the matter and the partnership.” Missouri courts have not deined what “inancial fee division between the attorneys. responsibility” or “ethical responsibility” means. However, courts The rule is silent as to which lawyer must obtain the written from other jurisdictions have deined “inancial responsibility” consent from the client. Missouri courts have not addressed to mean that the referring attorney would be jointly liable in a the issue but some courts in other jurisdictions have suggested malpractice suit. See Kummerer v. Marshall.10 Because of the joint that the responsibility falls on both the referring and receiving inancial liability imposed by Rule 4-1.5(e), the referring attorney attorney. See Kentucky Bar Association v. Chesley.16 Thus, to avoid any may want to ascertain whether the receiving attorney has mal- potential problem concerning this issue, it is best for both attor- practice insurance and whether the referring attorney’s malprac- neys to obtain the consent tice insurance policy covers malpractice of co-counsel. . “Ethical responsibility” is somewhat more diicult to ascertain Conclusion as no court has opined on its meaning. In addition, Missouri has In summary, referrals can be beneicial to an attorney whether not addressed the issue via a formal or informal ethics opinion. the attorney is making the referral or receiving the referral. However, the Wisconsin State Bar Professional Ethics Committee However, before an attorney makes a referral or encourages oth- Formal Ethics Opinion EF-10-02 (“the Opinion”) is instructive.11 ers to make referrals to the attorney, an attorney should review The Opinion provides clear cut and practical advice on the issue Missouri Supreme Court Rules 4-1.5(e), 4-5.4(a), and 4-7.2(c) of “ethical responsibility.” It emphasizes that “the duty of joint and then ensure that his or her conduct is in accordance with the responsibility imports a serious responsibility as a lawyer and is rules. not a mere hand of of the case to another lawyer to handle in his or her own fettered discretion.” Endnotes The Opinion provides that while the referring attorney need 1 Nancy Ripperger is staf counsel for the Oice of Chief Disciplinary Coun- not be involved in the day-to-day handling of the case, the refer- sel in Jeferson City. 2 Making Referral Marketing Work For You, ABA Law Practice Magazine, Novem- ring attorney must periodically review the status of the matter ber/December 2013 available at https://www.americanbar.org/publications/ and maintain enough contact to ascertain whether the attorney law_practice_magazine/2013/november-december/referral-marketing/. handling the matter is abiding by the Rules of Professional 3 Missouri Supreme Court Rule 4-7.2 (c) contains exceptions which allow an Conduct. It also sets forth that the referring attorney has a duty attorney to pay for the reasonable cost of advertising and pay the usual charges to ensure the attorney who receives the referral is competent of a qualiied lawyer referral service or other not-for-proit legal services organi- zation. 12 to handle the matter. These requirements make clear that the 4 Missouri’s Rule 4-7.2 is based upon ABA Model Rule 7.2. On August 6, referring attorney needs to be very careful in the selection of the 2018, the ABA amended Model Rule 7.2 to permit a lawyer to give a nominal attorney to handle the matter and should not base his or her se- gift as an expression of appreciation to a person for recommending the lawyer’s lection merely upon which attorney ofers the referring attorney services or referring a prospective client. The Comments to the amended rule specify that the gift cannot be any more than a token item as might be given for the best fee sharing deal. holidays or other ordinary social hospitality. The Missouri Supreme Court has The Opinion also explains that while the referring attorney not adopted the ABA’s amendment to Rule 7.2. need not have the same resources or expertise as the receiving 5 987 S.W.3d 403 (Mo. App. W.D. 1999). attorney, the referring attorney must be willing, and able, to 6 Id. at 405. Fees: Division Among Lawyers aBa/BNa lawyeRs’ MaNual oN PRofessioNal step in if the receiving attorney cannot complete the matter. For 7 , coNducT, § 41:712 (2018). example, per the Opinion, the referring attorney must step in 8 No. 08-4103-CV-C-NKL, 2009 WL 1543840 (W.D. Mo. 2009), af’d 611 F.3d if the receiving attorney becomes unable to act due to illness. 428 (8th Circ. 2010). The referring attorney must take whatever action is necessary 9 As explained below, if the attorney who receives the referral becomes inca- to protect the client’s interests. This could mean entering an ap- pacitated, the referring attorney would need to step in and do enough to ensure that the client’s interests are protected until new counsel is obtained. pearance and requesting a continuance or helping the client to 10 971 N.E.2d 198 (Ind. Ct. App. 2012). ind new counsel. 11 The language of Wisconsin’s rule is diferent than Missouri Supreme Court Besides requiring the referring attorney to share some level Rule 4-1.5(e). Wisconsin’s rule states that the lawyers must “assume the same of responsibility in the case, Rule 4-1.5(e) requires that the fees responsibility for the representation as if [they] were partners in the same irm.” In contrast, Missouri Supreme Court Rule 4-1.5(e) merely provides that “each charged be reasonable. In this context, “reasonable” means that lawyer assumes joint responsibility for the representation.” However, Comment 7 the total fee should not be signiicantly greater than it would to Missouri’s rule provides that ethical responsibility entails “responsibility for the have been if there had been no association with another at- representation as if the lawyers were associated in a partnership.” Thus, because torney.13 Thus, it is important that the attorneys do not “double of the clariication provided by Comment 7, it appears that both rules require the same thing. charge” for doing the same work. 12 Comment 7 to Missouri’s rule sets out the same requirement. Finally, and very importantly, Rule 4-1.5(e) provides that the 13 Fees: Division Among Lawyers, aBa/BNa lawyeRs’ MaNual oN PRofessioNal client must agree to the association between the two attorneys coNducT, § 41:702 (2018). and the agreement must be “conirmed in writing.14 “Conirmed 14 The client’s written consent to the referral can easily be incorporated into in writing” means either that the client consents to the referral the fee agreement. If the case is a contingent fee matter, a written fee agreement is required. Rule 4-1.5(c). in writing or that the lawyer promptly sends a writing to the 15 Missouri’s rule difers from the Model Rules of Professional Conduct. client conirming the client’s oral informed consent to the refer- Model Rule 1.5(e) requires the client to “agree to the arrangement, including the ral. Rule 4-1.0(b). While the client must consent to the associa- share each lawyer will receive.” tion, the attorneys are not required to disclose to the client what 16 393 S.W.3d 584 (Ky. 2013).
@MoBarNews @MoBarNews 29 SUPREME COURT RULE CHANGES
The Supreme Court of Missouri, in an order dated December The Supreme Court of Missouri, in an order dated December 4, 2018, repealed subdivision 8.09, entitled “Admission by 18, 2018, repealed subdivision 21.03 (Misdemeanors – Summons Transferred Uniform Bar Examination Score,” of Rule 8 or Warrant of Arrest – When Issued); subdivision 21.04 (Admission to the Bar), and in lieu thereof adopted a new (Misdemeanors – Statement of Probable Cause – Contents); subdivision 8.09, entitled “Admission by Transferred Uniform subdivision 21.05 (Misdemeanor – Summons – Contents); the Bar Examination Score.” heading title and subdivision 21.06 (Misdemeanors – Warrant This order becomes efective January 1, 2019. of Arrest – Contents); the heading title and subdivision 21.09 The complete text of the order may be read in its entirety at (Misdemeanors – Appearance Under Warrant Before Judge); www.courts.mo.gov. and the heading title and subdivision 21.10 (Misdemeanors – Initial Proceedings Before Judge), of Rule 21, entitled “Procedure Applicable to Misdemeanors Only,” and lieu thereof In an order dated December 3, 2018, the Supreme Court adopted a new subdivision 21.03 (Misdemeanors – Summons of Missouri repealed subdivision 74.11(a), entitled or Warrant of Arrest – When Issued); a new subdivision 21.04 “Acknowledgement of Satisfaction,” of Rule 74 (Judgments, (Misdemeanors – Statement of Probable Cause – Contents); a Orders and Proceedings Thereon), and adopted a new new subdivision 21.05 (Misdemeanor – Summons – Contents); subdivision 74.11(a), entitled “Acknowledgement of Satisfaction.” a new heading title and a new subdivision 21.06 (Misdemeanors This order becomes efective July 1, 2019. – Warrant for Arrest – Contents); a new heading title and a new The complete text of the order may be read in its entirety at subdivision 21.09 (Misdemeanors – Appearance Under Warrant www.courts.mo.gov. Before the Court); and a new heading title and a new subdivision 21.10 (Misdemeanors – Initial Appearance Before the Court). In the same order, the Court repealed subdivision 22.03 The Supreme Court of Missouri, in an order dated December (Felonies – Statement of Probable Cause – Contents); subdivision 3, 2018, adopted and approved for distribution forms for motion 22.04 (Felonies – Warrant of Arrest – When Issued); the heading to modify child support and related instructions prepared by that title and subdivision 22.05 (Felonies – Warrant of Arrest – Court’s Committee on Access to Family Courts and reviewed by Contents); the heading title and subdivision 22.07 (Felonies – the State Judicial Records Committee and the Supreme Court. Appearance Under Warrant Before Judge); the heading title and The forms are efective July 1, 2019 and may be used subdivision 22.08 (Felonies – Initial Proceedings Before Judge); prior thereto. These forms supersede any similar forms and and subdivision 22.09 (Felonies – Preliminary Hearing) of Rule instructions previously approved by the Supreme Court of 22, entitled “Procedure Applicable to Felonies Only,” and in lieu Missouri. thereof adopted a new subdivision 22.03 (Felonies – Statement The complete text of the order may be read in its entirety at of Probable Cause – Contents); a new subdivision 22.04 www.courts.mo.gov. (Felonies – Warrant of Arrest – When Issued); a new heading title and a new subdivision 22.05 (Felonies – Warrant for Arrest – Contents); a new heading title and a new subdivision 22.07 In an order dated December 18, 2018, the Supreme Court (Felonies – Appearance Under Warrant Before the Court); a of Missouri corrected an order of June 29, 2018, when it new heading title and a new subdivision 22.08 (Felonies – Initial repealed and adopted provisions of Rule 37, entitled “Statutory Appearance Before the Court); and a new subdivision 22.09 and Ordinance Violations and Violation Bureaus,” including (Felonies – Preliminary Hearing). repeal of subdivision 37.43 (Ordinance Violation – Summons In addition, the Court repealed subdivision 33.01 or Arrest Warrant – When Issued – Failure to Appear); (Misdemeanors or Felonies – Right to Release – Conditions); the subdivision 37.435 (Statement of Probable Cause); subdivision heading title and subdivision 33.02 (Misdemeanors or Felonies (f) of subdivision 37.64 (Sentence and Judgment); subdivision – Warrant for Arrest – Oicials Authorized to Set Conditions 37.65 (Imposition and Payment of Fines, Fees, and Costs, and of Release – Conditions to be Stated on Warrant); subdivision Contempt Proceedings); and the heading title and subdivision 33.04 (Misdemeanors or Felonies – Oicer Authorized to Accept 37.66 (Sentence of Imprisonment – Transcript to Corrections Conditions of Release); the heading title and subdivision 33.05 Oicial) and in lieu thereof adopted a new subdivision 37.43 (Misdemeanors or Felonies – Right to Review of Conditions); (Ordinance Violation – Summons or Arrest Warrant – When subdivision 33.06 (Misdemeanors or Felonies – Modiication Issued – Failure to Appear); a new subdivision 37.435 (Statement of Conditions of Release); subdivision 33.07 (Misdemeanors of Probable Cause); a new subdivision (f) of subdivision 37.64 or Felonies – Rules of Evidence Inapplicable); the heading title (Sentence and Judgment); a new subdivision 37.65 (Imposition and subdivision 33.08 (Misdemeanors or Felonies – Rearrest and Payment of Fines, Fees, and Costs, and Contempt of Accused); subdivision 33.09 (Misdemeanors or Felonies – Proceedings); and a new heading title and new subdivision 37.66 Failure of Court to Set Conditions or Setting of Inadequate (Sentence of Incarceration – Transcript to Corrections Oicial). or Excessive Conditions for Release – Application to Higher This order became efective January 1, 2019. The complete text of the order may be read in its entirety at www.courts.mo.gov. continued on page 54
30 mobar.org TAXES IN YOUR PRACTICE NEW DEVELOPMENTS FOR 2019 Scott E. Vincent1
The Tax Cuts and Jobs Act perform duties for the employer. Under this “convenience of the employer” test, carrying out of the employee’s duties must (TCJA) created substantial require that the employer provide the employee meals so that changes for taxpayers. As the employee can properly discharge such duties and be done for noncompensatory business reasons. Treasury regulations include practitioners and the Internal meals provided for employees with short meal periods due to the employer’s business or employees who must be available Revenue Service (IRS) work for emergency calls during meal periods. Prior cases have through implementation of the found that the IRS is precluded from substituting its judgment for the business decisions of a taxpayer regarding business TCJA, guidance is being issued needs and related employer policies. However, the IRS can from the IRS. This article determine whether an employer actually follows and enforces its own stated business policies and practices, and whether these outlines several key items for policies and practices, and the needs and concerns they address, necessitate the provision of meals so that there is a substantial consideration as we begin noncompensatory business reason for furnishing 2019. meals to employees.
Depreciation and Expensing Business Meals and Entertainment The IRS has issued Revenue Procedure 2019-8 The TCJA disallowed deductions for with guidance on deducting expenses under § 179 entertainment, amusement, and recreation and the alternate depreciation system (ADS) under activities. However, the new provisions did not § 168(g), as amended by the TCJA. The Revenue address when the food and beverages might Procedure explains how qualiied real property, as constitute entertainment. The IRS has issued new deined under the TCJA, can be treated as property guidance (Notice 2018-76) allowing taxpayers eligible for the § 179 expense election. The TCJA to deduct 50 percent of business meal expenses increased the § 179 deduction to $1 million and if: (a) the expense is an ordinary and necessary increased the phase-out limit to $2.5 million, trade or business expense; (b) the expense is not Scott E. Vincent with indexing for inlation after 2018. The TCJA lavish or extravagant under the circumstances; (c) also amended the deinition of qualiied real the taxpayer, or an employee of the taxpayer, is present at the property to include qualiied improvement property and some furnishing of the food or beverages; (d) the food and beverages improvements to nonresidential real property, including: roofs; are provided to a current or potential business customer, client, heating, ventilation and air-conditioning property; ire protection consultant, or similar business contact; and (e) in the case of and alarm systems; and security systems. The Revenue food and beverages provided during or at an entertainment Procedure outlines how real property trades or businesses or activity, the food and beverages are purchased separately from farming businesses that elect out of the TCJA interest deduction the entertainment, or the cost of the food and beverages is stated limitations may change to the ADS for property placed in service separately from the cost of the entertainment on one or more before 2018; the IRS also addresses whether these changes may bills, invoices, or receipts. be a change in accounting method. In addition, the Revenue Procedure provides an optional depreciation table for residential Meals for Convenience of Employer rental property depreciated under the ADS with a 30-year The IRS has issued counsel advice (AM 2018-004) recovery period. regarding the Code § 119 exclusion from employee income for meals furnished on the employer’s business premises for the Partnerships convenience of the employer. In Commissioner v. Kowalski,2 the The IRS issued inal regulations implementing the new U.S. Supreme Court determined that the § 119 exclusion only centralized partnership audit regime. The inal regulations are applies if meals are necessary for the employee to properly generally efective for partnership tax years beginning after 2017,
@MoBarNews @MoBarNews 31 but partnerships can make an election to have the provisions Suspension of Personal Exemption apply to earlier periods. Under the new rules, adjustments to The IRS issued Notice 2018-84 with interim guidance to partnership-related items are determined at the partnership clarify how the suspension of the personal exemption deduction level. The inal regulations clarify that items or amounts are from 2018 through 2025 under the TCJA applies to certain rules partnership-related items only if shown, or required to be that reference that provision but were not also suspended. These shown, on the partnership return or required to be maintained include rules dealing with the healthcare premium tax credit, in the partnership’s books and records. Partners must report and the individual shared responsibility provision (also known these partnership-related items consistent with the treatment as the individual mandate) for 2018. The notice conirms that, on the partnership’s return or provide adequate notice to the for purposes of other provisions, the suspension of the personal IRS of inconsistent treatment. A partner can provide notice to exemption by reducing the exemption amount to zero shall not the IRS of inconsistent treatment by attaching a statement to be considered in determining whether a deduction is allowed or the partner’s return (including any amended return) on which allowable, or whether a taxpayer is entitled to a deduction. The the partnership-related item is treated inconsistently. If the IRS reduction of the personal exemption to zero is not intended to adjusts partnership-related items, the partnership, rather than alter the operation of other provisions of the Code that refer to a the partners, is subject to liability for any imputed underpayment taxpayer allowed a deduction. and must take other adjustments into account in the adjustment year. Alternatively, the regulations allow a partnership to Afordable Care Act Hardship Exemption and Deadline make an election to distribute the efect of the adjustments Extensions to its partners for the year that adjustments are made by the The IRS has issued Notice 2019-5 with additional hardship IRS, causing the partners to pay any tax due as a result of the exemptions from the individual shared responsibility payment adjustments. (also known as the individual mandate) that a taxpayer may claim on a federal income tax return without obtaining a State and Local Tax and Charitable Contributions hardship exemption certiication from the Health Insurance For tax years beginning after 2017, the TCJA limits an Marketplace. The IRS also issued Notice 2018-94 extending one individual’s deduction to $10,000 ($5,000 in the case of a of the due dates for the 2018 information reporting requirements married individual iling a separate return) for the aggregate under the ACA for insurers, self-insuring employers, and amount of the following state and local taxes paid during the certain other providers of minimum essential coverage, and calendar year: (1) real property taxes; (2) personal property taxes; the information reporting requirements for applicable large (3) income, war proits, and excess proits taxes; and (4) general employers (ALEs). If applicable, the due date for these parties sales taxes. This limitation does not apply to certain taxes that to furnish certain ACA forms is extended to March 4, 2019. are paid and incurred in carrying on a trade or business or Transition relief from certain penalties for good faith eforts to a for-proit activity. Since the enactment of the TCJA, some comply with the ACA information reporting requirements is also taxpayers sought to avoid the limitation by making deductible extended. charitable payments to charitable entities pursuant to state and local tax credit programs. During 2018, the IRS issued guidance Limitation on Business Interest Expense Deductions undermining this strategy, inding that charitable contributions For tax years beginning after 2017, the TCJA provides that the were reduced by the amount of any “quid pro quo” return tax deduction allowed for business interest for any tax year cannot credit beneit. However, the IRS has now released Revenue exceed the sum of: (1) business interest income; (2) 30 percent Procedure 2019-12 with safe harbors that do allow a deduction of adjusted taxable income (but not less than zero); plus (3) loor for certain payments made by a C corporation or a “speciied plan inancing interest (certain interest paid by vehicle dealers). pass-through entity” to or for the use of a charitable organization The term “business interest” means any interest properly if the paying entity receives or expects to receive a state or local allocable to a trade or business. However, the deduction limit on tax credit in return for the payment. If qualiied, the payment business interest does not apply to interest properly allocable to is treated as meeting the requirements of an ordinary and an “electing real property trade or business.” The IRS has issued necessary business expense for the business entity. Revenue Procedure 2018-59 to provide a safe harbor that allows The Revenue Procedure safe harbor only applies to speciied taxpayers to treat certain infrastructure trades or businesses pass-through if: (1) the entity is a business entity other than a C as real property trades or businesses solely for purposes of corporation that is regarded for all federal income tax purposes qualifying as an electing real property trade or business. The as separate from its owners; (2) the entity operates a trade or Revenue Procedure identiies infrastructure property that business; (3) the entity is subject to a state or local tax incurred may qualify, including airports, docks, ports, mass commuting in carrying on its trade or business that is imposed directly facilities, water furnishing and disposal facilities, sewage and on the entity; and (4) in return for a payment to a charitable waste disposal facilities, and several others. organization, the entity receives or expects to receive a state or local tax credit that the entity applies or expects to apply to ofset Penalty Avoidance a state or local tax described in (3), above, other than a state or The IRS issued Revenue Procedure 2019-9 identifying local income tax. circumstances under which disclosure on a taxpayer’s income
32 mobar.org tax return with respect to an item or position is adequate to on a line that does not have a preprinted description (such as reduce understatement of tax for purposes of the substantial on an unnamed line under an “Other Expense” category), the understatement accuracy-related penalty and for purposes of taxpayer must clearly identify the item by including a description the tax return preparer penalty for understatements due to on that line. For items not covered by this Revenue Procedure unreasonable positions. The Revenue Procedure applies to and for related party transactions, adequate disclosure requires 2018 tax returns and outlines speciic information that must be iling a Form 8275 (Disclosure Statement) or 8275-R (Regulation provided for certain items, including: itemized deductions on Disclosure Statement). Form 1040 (Schedule A); certain trade or business expenses; diferences in book and income tax reporting; certain foreign tax Conclusion items; and other items such as moving expenses and employee Hopefully, this is a good summary for review by you and business expenses. The Revenue Procedure also requires that your clients as we begin 2019. Be careful to watch for ongoing money amounts entered on a form must be veriiable, which changes in Congress and at the IRS in coming months. means the taxpayer can prove the origin of the amount (even if that number is not ultimately accepted by the IRS) and the Endnote 1 Scott E. Vincent is the founding member of Vincent Law, LLC in Kansas taxpayer can show good faith in entering that number on the City. applicable form. Further, when the amount of an item is shown 2 Commissioner v. Kowalski, 434 U.S. 77 (1977).
Someimes reaching out for help is the bravest move you can make. Together we’ve got this. Call MOLAP 800-688-7859
@MoBarNews @MoBarNews 33 IN MEMORIAM
John H. Bleckman, age 70, of St. Louis on September 23, its Distinguished Attorney Award. In 1998, she joined Husch 2018. He joined The Missouri Bar in 1984 and practiced law in Blackwell, LLP as a partner, serving as oice managing partner St. Louis. from 2008 until 2015. She served as a member of The Missouri Bar Board of Governors from 2007-2008. In 2015, Missouri David N. Clayton of Hannibal on December 8, 2018 at Lawyers Media honored her as Woman of the Year. She was the age of 46. He received his law degree from the University elected as chair of the Missouri State University Board of of Missouri-Kansas City. He irst joined the Public Defender Governors in 2017. Oice in Columbia. In 2014, Governor Jay Nixon appointed him Marion County prosecutor. He was later elected to that Susan M. Hunt, at 66, on November 27, 2018. Prior to position and served until his death. He was a member of receiving her law degree from the University of Missouri- The Missouri Bar, the Missouri Association of Prosecuting Kansas City, she was a chemist with the Kansas City Police Attorneys, and the 10th Judicial Circuit Bar Association. Department. She joined The Missouri Bar in 1986 and spent most of her career as a solo pracitioner. Donald H. Clooney, age 88, of St. Louis on November 25, 2018. He is a veteran of the U.S. Air Force, where he served as Edwin P. McKaskel of Wildwood on March 1, 2018 at the a captain and was drafted by the U.S. Water Polo Team to play age of 79. He received his law degree from the University in the 1952 Olympics. He earned his law degree from Saint of Mississippi and joined The Missouri Bar in 1977. After Louis University and practiced law for more than 50 years. graduation, he became a special agent for the F.B.I., then general manager of asset protection for AT&T, retiring after 35 Hon. Frank D. Connett Jr. of St. Joseph on November 6, years. 2018 at the age of 96. He served in the U.S. Army Air Corps during World War II. In 1949, he received an LL.B. degree Joseph J. Nitka Jr. of St. Louis on July 12, 2018 at the age of from the University of Missouri. He served as Buchanan 89. He received his law degree from Saint Louis University and County assistant prosecuting attorney from 1951-1954 and as joined The Missouri Bar in 1956. He retired at the age of 82 prosecutor from 1955-1958. In 1957, he was president of the after serving as a labor arbitrator for more than 40 years. Missouri Association of Prosecuting Attorneys. Beginning in 1958, he was an elected judge of Division III of the 5th Judicial Pastor/Honorable John F. Payne, age 72, of Kansas Circuit for 30 years. He served as an honorary colonel on the City on November 4, 2018. He was a veteran of the U.S. Air staf of Governor John Dalton. In 2002, the Missouri Bar Force and earned his J.D. from the University of Missouri- Foundation honored him with the Spurgeon Smithson Award. Kansas City. He practiced law as a partner of Gray, Payne & Roque before serving as a family court commissioner for the Edward A. Cook III, age 88, of Georgetown, TX on August 16th Judicial Circuit Court, Juvenile Division 41, for nearly 18 13, 2018. During the Korean War he served in the U.S. Army years, retiring in 2008. In 2003, the Missouri Governor and Counter Intelligence Corps. He received his law degree from General Assembly established the commission on Children’s the University of Missouri and joined The Missouri Bar in Justice and named Payne as a member. Ordained in 1992, he 1953. For ive decades he practiced law in Lexington, NE was called to be pastor of the Temple of Faith in 2003. He with Cook & Cook Law Oice, and later Cook, Kopf & served as a member of the board of Niles Home for Children Doyle Law Oice. He was also president of First State Bank and in November 2009 was named Outstanding Family in Gothenburg, NE and president of the Nebraska Cultural Advocate-2009 by the Cornerstones of Care. Endowment. Stacey M. Reines of Overland Park, KS on October 18, Hon. Wesley C. Dalton of Wright City on December 16, 2018 at the age of 63. She received her J.D. from Washington 2018 at the age of 60. He joined The Missouri Bar in 1988, University and joined The Missouri Bar in 1981. She started and was the presiding circuit judge for the 12th Judicial Circuit, her career as in-house counsel at the Housing Authority of comprised of Warren, Montgomery and Audrain counties. Kansas City and most recently worked at Meico Lamp Parts.
Gary I. Froistad, age 75, of Savannah, GA on October 25, Daniel D. Sawyer, age 89, of Leawood, KS on October 2018. He earned his J.D. from the University of South Dakota 15, 2018. In 1946, he joined the U.S. Army Air Forces and and joined The Missouri Bar in 1990. served in Japan as a paratrooper. In 1956, he earned his law degree from the University of Missouri-Kansas City and joined Virginia L. Fry of Springield on November 18, 2018 at the The Missouri Bar. That same year, he joined the law irm of age of 64. She earned her J.D. from the University of Missouri- Hubbell, Lane & Sawyer, where he practiced law for more than Kansas City. In 1994, she was the irst female president of the 40 years before his retirement. He then served as of counsel Springield Metropolitan Bar, and is the only woman to receive for the Barnes Law Firm for several years before his inal
34 mobar.org retirement. In addition to being past president of the Missouri Association of Trial Attorneys, he was an active member of the VFW, having served as commander of Pete Dover Post 302.
Hon. Harvey J. Schramm of Brentwood on December 9, 2018 at the age of 80. He was a veteran of the U.S. Army, serving in the Active Army Reserves from 1960-1961. He earned his law degree from Washington University and served as St. Louis County prosecutor for three years before the governor appointed him as judge at the St. Louis County Courthouse, where he served eight years. He continued in his private law practice for more than 35 years. He also served as president of the St. Louis Chapter of B’nai B’rith and on the board of directors of the American Jewish Congress.
Don R. Wintermeyer of Georgetown, TX on July 27, 2018 at the age of 77. He joined The Missouri Bar in 1966.
The Journal of The Missouri Bar publishes items in the "In Memoriam" section as they are received. To honor the lives and achievements of deceased members, The Missouri Bar solicits additional information about these men and women from family members or printed obituaries. When that information is not provided or is otherwise unavailable, the Journal will print only the deceased’s name, city of residence, and date of death.
President’s Page Endnotes 1 Raymond E. Williams is an attorney with Williams Law Oices, LLC in Continued from page 6 West Plains. 2 See Joseph P. Lash, Helen and Teacher: The Story of Helen Keller and Anne Sullivan academics, community members, elected oicials, or other Macy (Radclife 1980). interested stakeholders, Missouri lawyers are positioned and 3 See The Role of the Convenor, National Policy Consensus Center, www. able to help others work together to address today’s problems policyconcsensus.org/publicsolutions/ps_6.html. in a productive and collaborative way. I invite you to join your 4 Id. 5 Id. Missouri Bar in fostering these important conversations to 6 Id. improve our profession, the law, and the lives of our fellow 7 See, e.g., Dan Kittay, Bringing People Together: The Bar’s Role as Convener, BaR Missourians. leadeR, Jan.-Feb. 2018.
@MoBarNews @MoBarNews 35 THE LAWYERS’ MART
THE CHOICE OF A LAWYER IS AN IMPORTANT DECISION AND SHOULD NOT BE BASED SOLELY UPON ADVERTISEMENTS.
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Classified Ad Rates: $1.25 per word for members of The Missouri Bar or surviving spouse of deceased members ($30 minimum); $2.00 per word for non- members and for organizations not related to The Missouri Bar ($50 minimum). No discount for repeat insertions. Copy for ads must be received 15 days prior to the first day of the month of issue: February, April, June, August, October and December. Any element surrounded by spaces is a word. File Numbers: If a file number is used, e-mailed responses should have a subject line of File (No.) and be sent to [email protected]. Mailed responses to the ad should be addressed: File (No.), Journal of The Missouri Bar, P.O. Box 119, Jefferson City, MO 65102-0119. Publication of advertising in The Lawyers’ Mart is not an endorsement by The Missouri Bar or the Journal of the goods or services advertised.
36 mobar.org DISCIPLINARY ACTIONS
Disbarments Probations 11/20/18 Richard L. Winkie 11/21/18 Raymund J. Capelovitch #59455 #41537 101 E. Sheridan St. 7470 Stanford Ave. P.O. Box 502 St. Louis, MO 63130 Macon, MO 63552 12/4/18 Joel B. Eisenstein 1/9/19 Jefrey B. Allen #21476 #58252 600 Hill Pointe Ct., Ste. 200 255 N. Adams, Ste. C St. Charles, MO 63309 P.O. Box 996 Lebanon, MO 65536 12/18/18 William Asa Hutchinson III #60278 Suspensions 912 W. Central Ave. 10/30/18 Bryce C. Crowley Bentonville, AR 72712 #64800 901 N. Pine St., #110 Reinstatements Rolla, MO 65401 11/5/18 C. Christopher Lozano #39497 11/20/18 Mary L. Lemp 8019 Knights Crossing Dr. #63027 O’Fallon, MO 63368 1717 Park Ave. St. Louis, MO 63104 12/4/18 David A. Kraft #49512 12/4/18 Bryan E. Bennett 12308 Wegona Ln. #54779 Leawood, KS 66209 65A King St. Burlington, VT 05401 Completed Probation 11/1/18 Timothy Belz 12/18/19 Scott A. Bailey #31808 #47515 112 S. Hanley, Ste. 200 518 S. Hanley Rd. St. Louis, MO 63105 St. Louis, MO 63105 11/1/18 Robert B. Leggat Jr. 12/27/18 Babette P. Salus #23780 #35321 112 S. Hanley, Ste. 200 1100 S. 5th St. St. Louis, MO 63105 Springield, IL 62703 11/1/18 Lamar E. Ottsen Jr. Reprimands #18682 12/4/18 Joe G. Harms II 112 S. Hanley, Ste. 200 #23989 St. Louis, MO 63105 111 N. Taylor Ave., Ste. C Kirkwood, MO 63122 11/26/18 Bradford C. Emert #36118 12/4/18 David C. Salivar 11934 Bedford Dr. #24205 St. Louis, MO 63131 111 N. Taylor Ave., Ste. C Kirkwood, MO 63122 12/6/18 Jay R. Yorke #35023 12/18/18 Brent L. Winterberg 16 E. Stoddard St. #44038 P.O. Box 621 4310 Madison Ave., Ste. 209 Dexter, MO 63841 Kansas City, MO 64111-3435
@MoBarNews @MoBarNews 37 NOTICES OF CORPORATE DISSOLUTION
Notice of Corporate Dissolution Rates: $1.25 per word for a member of in writing of the circumstances surrounding your claim to the The Missouri Bar; $2.00 for non-members. For purposes of the total word Corporation in care of Patrick E. White, P.O. Box 7183, Kansas count, any element surrounded by spaces is considered to be a word. DO City, MO 64113. The summary of your claim must include the NOT SEND A CHECK with the notice. You will be invoiced in advance of publication, and all invoices must be paid prior to publication. following information: Copy must be received by February 20 (for March/April issue), April 20 (for 1. The name, address, and telephone number of the claimant. May/June issue), June 20 (for July/August issue), August 20 (for September/ 2. The amount of the claim. October issue), October 20 (for November/December issue), and December 3. The date on which the event on which the claim is based 20 (for January/February issue). occurred. Send notices to Cynthia Heerboth at The Missouri Bar, P.O. Box 119, Jefferson City, MO 65101, by e-mail to [email protected]. 4. A brief description of the nature of the debt or the basis for the claim. NOTICE OF WINDING UP OF All claims against The Green Company, Inc. will be barred LIMITED PARTNERSHIP TO ALL unless the proceeding to enforce the claim is commenced within CREDITORS OF AND CLAIMANTS AGAINST two years after the publication of this notice. WIL-MAR ACRES, LP On October 16, 2018, WIL-MAR ACRES, LP, a Missouri limited partnership, iled a Cancellation of Registration with the NOTICE OF DISSOLUTION TO ALL Missouri Secretary of State. CREDITORS OF AND CLAIMANTS AGAINST Persons with claims against the limited partnership are ARBORS AT KEHRS MILL, LLC requested to present them in accordance with the Notice Arbors at Kehrs Mill, LLC, a Missouri limited liability of Winding Up. You must furnish your name, address, and company, iled its Notice of Winding Up with the Missouri telephone number together with the following: (1) Amount of Secretary of State on October 30, 2018. the claim; (2) Basis for the claim; and (3) Documentation of the Any and all claims against Arbors at Kehrs Mill, LLC may be claim. sent to Robert Berra, 5091 New Baumgartner Road, St. Louis, Claims must be mailed to: Robert C. Black, 245 Main St., Missouri 63129. Each claim should include the following P.O. Box 2058, Platte City, MO 64079. information: the name, address, and telephone number of the A claim against the limited partnership will be barred unless claimant; the amount of the claim; the basis for the claim; and the a proceeding to enforce the claim is commenced within three (3) date(s) on which the event(s) on which the claim is based occurred. years after the publication of this notice. Any and all claims against Arbors at Kehrs Mill, LLC will be barred unless a proceeding to enforce such claim is commenced within three (3) years after the date this notice is published. NOTICE OF WINDING UP OF LIMITED LIABILITY COMPANY TO ALL CREDITORS OF AND CLAIMANTS AGAINST NOTICE OF DISSOLUTION TO ALL ABLES MANOR PROPERTIES, LLC CREDITORS OF AND CLAIMANTS AGAINST On October 30, 2018, Ables Manor Properties, LLC, a DEER & DUCKS, LLC Missouri limited liability company (hereinafter the “Company”), Deer & Ducks, LLC, a Missouri limited liability company, iled iled its Notice of Winding Up for a Limited Liability Company its Notice of Winding Up with the Missouri Secretary of State on with the Missouri Secretary of State. October 30, 2018. Any claims against the Company may be sent to: Terry Cole, Any and all claims against Deer & Ducks, LLC may be sent to 1311 Columbine, Sikeston, Missouri 63801. Each claim Robert Berra, 5091 New Baumgartner Road, St. Louis, Missouri must include the following information: name, address, and 63129. Each claim should include the following information: phone number of the claimant; amount claimed; date on which the name, address, and telephone number of the claimant; the the claim arose; the basis for the claim; and documentation in amount of the claim; the basis for the claim; and the date(s) on support of the claim. which the event(s) on which the claim is based occurred. All claims against the Company will be barred unless the Any and all claims against Deer & Ducks Mill, LLC will be proceeding to enforce the claim is commenced within three years barred unless a proceeding to enforce such claim is commenced after the publication of this notice. within three (3) years after the date this notice is published.
NOTICE OF DISSOLUTION TO ALL NOTICE OF DISSOLUTION TO ALL CREDITORS OF AND CLAIMANTS AGAINST CREDITORS OF AND CLAIMANTS AGAINST THE GREEN CORPORATION THE VILLAS AT SUSON HILLS, LLC On October 30, 2018, The Green Company, Inc. iled its The Villas at Suson Hills, LLC, a Missouri limited liability articles of dissolution with the Missouri Secretary of State. The company, iled its Notice of Winding Up with the Missouri dissolution was efective on October 30, 2018. Secretary of State on October 30, 2018. You are hereby notiied that if you believe you have a claim Any and all claims against The Villas at Suson Hills, LLC may against The Green Company, Inc., you must submit a summary be sent to Robert Berra, 5091 New Baumgartner Road,
38 mobar.org St. Louis, Missouri 63129. Each claim should include the NOTICE OF DISSOLUTION TO ALL following information: the name, address, and telephone number CREDITORS OF AND CLAIMANTS AGAINST of the claimant; the amount of the claim; the basis for the claim; MISSOURI CREDIT PARTNERS 2002, LLC and the date(s) on which the event(s) on which the claim is based Missouri Credit Partners 2002, LLC iled its Notice of occurred. Winding Up on November 5, 2018. Any and all claims against The Villas at Suson Hills, LLC will The company requests that all claims be presented be barred unless a proceeding to enforce such claim is commenced immediately by letter to: Malika Simmons, c/o Kansas City Life within three (3) years after the date this notice is published. Insurance Company, 3520 Broadway, KCMO 64111. Claims must include name, address, and telephone number of claimant; amount; the basis for the claim; and documentation. NOTICE OF DISSOLUTION TO ALL All claims against the company shall be barred unless a CREDITORS OF AND CLAIMANTS AGAINST proceeding to enforce the claim is commenced within three years WILMAS FARM, LLC after the publication of this notice. Wilmas Farm, LLC, a Missouri limited liability company, iled its Notice of Winding Up with the Missouri Secretary of State on October 30, 2018. NOTICE OF DISSOLUTION TO ALL Any and all claims against Wilmas Farm, LLC may be sent to CREDITORS OF AND CLAIMANTS AGAINST Robert Berra, 5091 New Baumgartner Road, St. Louis, Missouri PREMIER PAPER AND PACKAGING, INC. 63129. Each claim should include the following information: On October 8, 2018, Premier Paper and Packaging, Inc., a the name, address, and telephone number of the claimant; the Missouri corporation (the “Corporation”), iled its Articles of amount of the claim; the basis for the claim; and the date(s) on Dissolution with the Missouri Secretary of State. The dissolution which the event(s) on which the claim is based occurred. was efective upon this date. Any and all claims against Wilmas Farm, LLC will be barred You are hereby notiied that if you believe you have a claim unless a proceeding to enforce such claim is commenced within against the Corporation, you must submit a written summary of three (3) years after the date this notice is published. your claim to the Corporation care of The Law Firm of Haden & Haden, ATTN: Brent Haden, PO Box 7166, Columbia, MO 65205. The summary of your claim must include the following NOTICE OF DISSOLUTION TO ALL information: CREDITORS OF AND CLAIMANTS AGAINST 1. The name, address, and telephone number of claimant; KCL GEORGIA CREDIT PARTNERS IIA, LLC 2. The amount of the claim; KCL Georgia Credit Partners IIA, LLC iled its Notice of 3. The date on which the claim is based occurred; Winding Up on November 5, 2018. 4. A brief description of the nature of the debt or the basis of The company requests that all claims be presented the claim; and immediately by letter to: Malika Simmons, c/o Kansas City Life 5. Whether the claim is secured, and if so, the collateral used Insurance Company, 3520 Broadway, KCMO 64111. Claims as security. must include name, address, and telephone number of claimant; All claims against the Corporation will be barred unless this amount; the basis for the claim; and documentation. summary is received within 2 years of this notice. All claims against the company shall be barred unless a proceeding to enforce the claim is commenced within three years after the publication of this notice. NOTICE OF WINDING UP FOR LIMITED LIABILITY COMPANY TO ALL CREDITORS OF AND CLAIMANTS AGAINST NOTICE OF DISSOLUTION TO ALL LBR – LAMBERT, LLC CREDITORS OF AND CLAIMANTS AGAINST On November 7, 2018, LBR – Lambert, LLC iled its Notice MCP 2010, LLC of Winding Up for Limited Liability Company with the Missouri MCP 2010, LLC iled its Notice of Winding Up on Secretary of State. The notice was efective on November 7, November 5, 2018. 2018. The company requests that all claims be presented YOU ARE HEREBY NOTIFIED that if you believe you immediately by letter to: Malika Simmons, c/o Kansas City Life have a claim against LBR – Lambert, LLC, you must submit a Insurance Company, 3520 Broadway, KCMO 64111. Claims summary in writing of the circumstances surrounding your claim must include name, address, and telephone number of claimant; to the said LBR – Lambert, LLC at the following address: amount; the basis for the claim; and documentation. LBR – Lambert, LLC, 2107 Ridgecrest Street, Chillicothe, All claims against the company shall be barred unless a Missouri 64601. proceeding to enforce the claim is commenced within three years Telephone: (660) 973-4490. after the publication of this notice. The summary of your claim must include the following information: 1. The name, address, and telephone number of the claimant; 2. The amount of the claim; 3. The date on which the event for which the claim is based occurred; and
@MoBarNews @MoBarNews 39 4. A brief description of the nature of the debt or the basis for the proceeding to enforce the claim is commenced within three the claim. (3) years after the publication of this notice. All claims against LBR – Lambert, LLC will be barred unless the proceeding to enforce the claim is commenced within three (3) years after the publication of this notice. NOTICE OF WINDING UP OF LIMITED LIABILITY COMPANY TO ALL CREDITORS OF AND CLAIMANTS AGAINST NOTICE OF WINDING UP FOR ABC OF SOUTHEAST MISSOURI, L.L.C. LIMITED LIABILITY COMPANY TO ALL On November 9, 2018, ABC of Southeast Missouri, L.L.C., a CREDITORS OF AND CLAIMANTS AGAINST Missouri limited liability company (hereinafter the “Company”), LBR – FAIR, LLC iled its Notice of Winding Up for a Limited Liability Company On November 7, 2018, LBR – Fair, LLC iled its Notice of with the Missouri Secretary of State. Winding Up for Limited Liability Company with the Missouri Any claims against the Company may be sent to: Terry Cole, Secretary of State. The notice was efective on November 7, 1515 East Malone, Sikeston, Missouri 63801. Each claim 2018. must include the following information: name, address, and YOU ARE HEREBY NOTIFIED that if you believe you phone number of the claimant; amount claimed; date on which have a claim against LBR – Fair, LLC, you must submit a the claim arose; the basis for the claim; and documentation in summary in writing of the circumstances surrounding your claim support of the claim. to the said LBR – Fair, LLC at the following address: All claims against the Company will be barred unless the LBR – Fair, LLC, 2107 Ridgecrest Street, Chillicothe, proceeding to enforce the claim is commenced within three years Missouri 64601. after the publication of this notice. Telephone: (660) 973-4490. The summary of your claim must include the following information: NOTICE OF WINDING UP OF 1. The name, address, and telephone number of the claimant; LIMITED LIABILITY COMPANY TO 2. The amount of the claim; ALL CREDITORS OF AND CLAIMANTS 3. The date on which the event for which the claim is based AGAINST GREEN CROW, LLC occurred; and Notice is hereby given that Green Crow, LLC, a Missouri 4. A brief description of the nature of the debt or the basis for limited liability company (the “Company”), is being liquidated the claim. and dissolved pursuant to the Missouri Limited Liability All claims against LBR – Fair, LLC will be barred unless the Company Act (the “Act”). This notice is being given pursuant to proceeding to enforce the claim is commenced within three (3) Section 347.141 of the Act. years after the publication of this notice. All persons with claims against the Company should submit them in writing in accordance with this notice to: Vatterott Harris P.C., Attn: Paul J. Harris, 2458 Old Dorsett Road, NOTICE OF WINDING UP FOR Suite 230, Maryland Heights, MO 63043. LIMITED LIABILITY COMPANY TO ALL Claims against the Company must include: (1) the claimant’s CREDITORS OF AND CLAIMANTS AGAINST name, address, and phone number; (2) the amount claimed; LBR – FAIRVIEW, LLC (3) the date the claim arose; (4) the basis of the claim; and (5) On November 7, 2018, LBR – Fairview, LLC iled its Notice documentation supporting the claim. of Winding Up for Limited Liability Company with the Missouri A claim against the Company will be barred unless a Secretary of State. The notice was efective on November 7, proceeding to enforce the claim is enforced within three years 2018. after the publication of this notice. YOU ARE HEREBY NOTIFIED that if you believe you have a claim against LBR – Fairview, LLC, you must submit a summary in writing of the circumstances surrounding your claim NOTICE OF CORPORATE DISSOLUTION to the said LBR – Fairview, LLC at the following address: TO ALL CREDITORS OF AND CLAIMANTS LBR – Fairview, LLC, 2107 Ridgecrest Street, Chillicothe, AGAINST FIRST BANC INSURANCE Missouri 64601. SERVICES CORPORATION Telephone: (660) 973-4490. On October 16, 2018, FIRST BANC INSURANCE The summary of your claim must include the following SERVICES CORPORATION, a Missouri corporation, iled its information: Articles of Dissolution by Voluntary Action with the Secretary of 1. The name, address, and telephone number of the claimant; State of Missouri, efective on October 16, 2018. 2. The amount of the claim; Any claims against FIRST BANC INSURANCE SERVICES 3. The date on which the event for which the claim is based CORPORATION may be sent to: Legal Department, 11901 occurred; and Olive Blvd., Suite 212 Creve Coeur, Missouri 63141. Each claim 4. A brief description of the nature of the debt or the basis for must include the following information: name, address, and the claim. telephone number of the claimant; amount claimed; date on All claims against LBR – Fairview, LLC will be barred unless which the claim arose; basis for the claim; and documentation supporting the claim. 40 mobar.org Each claim will be barred unless a proceeding to enforce it is Any and all claims against Laurel Hotel Master Tenant, commenced within two (2) years after publication of this notice. LLC will be barred unless a proceeding to enforce such claim is commenced within three (3) years after the date this notice is published. NOTICE OF DISSOLUTION TO ALL CREDITORS OF AND CLAIMANTS AGAINST SUMMER CASUAL, LLC NOTICE OF WINDING UP FOR You are hereby notiied that on November 6, 2018, Summer LIMITED LIABILITY COMPANY TO ALL Casual, LLC, a Missouri limited liability company (“LLC”) was CREDITORS OF AND CLAIMANTS AGAINST dissolved upon the iling of its Articles of Termination with the LAUREL APARTMENTS MASTER TENANT, LLC Missouri Secretary of State. Laurel Apartments Master Tenant, LLC, a Missouri limited Said LLC requests that all persons and organizations who liability company, iled its Notice of Winding Up for Limited have claims against it present them immediately by letter to the Liability Company with the Missouri Secretary of State on LLC c/o Checkett & Pauly, PC, PO Box 409, Carthage, MO November 29, 2018. 64836, Attention: Sarah Kersh. All claims must include: (1) the Any and all claims against Laurel Apartments Master Tenant, name and address of the claimant; (2) the amount claimed; LLC may be sent to Brian J. Beck, 7733 Forsyth Blvd., Suite 400, (3) the basis for the claim; (4) the documentation of the claim; Clayton, MO 63105. Each claim should include the following and (5) the date(s) of the event(s) on which the claim is based information: the name, address, and telephone number of the occurred. claimant; the amount of the claim; the basis of the claim; and the Notice: Because of the termination of Summer Casual, date(s) on which the event(s) on which the claim is based occurred. LLC, any claims against it will be barred unless a proceeding Any and all claims against Laurel Apartments Master Tenant, to enforce the claim is commenced within three years after the LLC will be barred unless a proceeding to enforce such claim publication of this notice. is commenced within three (3) years after the date this notice is published.
NOTICE OF WINDING UP FOR NOTICE OF WINDING UP OF LIMITED LIABILITY COMPANY TO ALL LIMITED LIABILITY COMPANY TO ALL CREDITORS OF AND CLAIMANTS AGAINST CREDITORS OF AND CLAIMANTS AGAINST LAUREL HOTEL MANAGER, LLC C & D AUTO AND MUFFLER, LLC Laurel Hotel Manager, LLC, a Missouri limited liability On December 6, 2018, C & D Auto and Muler, LLC, a company, iled its Notice of Winding Up for Limited Liability Missouri limited liability company (the “Company”), iled its Company with the Missouri Secretary of State on November 29, Notice of Winding Up for a Limited Liability Company with the 2018. Missouri Secretary of State. Any and all claims against Laurel Hotel Manager, LLC Any claims against the Company may be sent to: Kyle may be sent to Brian J. Beck, 7733 Forsyth Blvd., Suite 400, Harmon, Lowther Johnson Attorneys at Law, LLC, 901 E St. Clayton, MO 63105. Each claim should include the following Louis St, 20th Floor, Springield, MO 65806. Each claim must information: the name, address, and telephone number of the include the following information: name, address, and phone claimant; the amount of the claim; the basis of the claim; and number of the claimant; amount claimed; date on which the the date(s) on which the event(s) on which the claim is based claim arose; the basis for the claim; and documentation in occurred. support of the claim. Any and all claims against Laurel Hotel Manager, LLC will be All claims against the Company will be barred unless the barred unless a proceeding to enforce such claim is commenced proceeding to enforce the claim is commenced within three years within three (3) years after the date this notice is published. after publication of this notice.
NOTICE OF WINDING UP FOR NOTICE OF CORPORATE DISSOLUTION LIMITED LIABILITY COMPANY TO ALL TO ALL CREDITORS OF AND CLAIMANTS AGAINST CREDITORS OF AND CLAIMANTS AGAINST RANDOM APP, INC. LAUREL HOTEL MASTER TENANT, LLC On December 10, 2018, Random App, Inc., a Missouri Laurel Hotel Master Tenant, LLC, a Missouri limited liability corporation, iled its Articles of Dissolution with the Missouri company, iled its Notice of Winding Up for Limited Liability Secretary of State. Dissolution was efective on December 10, 2018. Company with the Missouri Secretary of State on November 29, Said corporation requests that all persons and organizations 2018. who have claims against it present them immediately by letter to Any and all claims against Laurel Hotel Master Tenant, LLC the corporation at: may be sent to Brian J. Beck, 7733 Forsyth Blvd., Suite 400, Random App., Inc. Clayton, MO 63105. Each claim should include the following David P. Weiss, Esq. information: the name, address, and telephone number of the Sandberg Phoenix & von Gontard P.C. claimant; the amount of the claim; the basis of the claim; and 600 Washington Avenue, 15th Floor the date(s) on which the event(s) on which the claim is based St. Louis, MO 63101 occurred. @MoBarNews @MoBarNews 41 All claims must include the name and address of the claimant; NOTICE OF WINDING UP the amount claimed; the basis for the claim; copies of any OF LIMITED PARTNERSHIP TO ALL documents or instruments upon which the claim arises; and CREDITORS OF AND CLAIMANTS AGAINST the date(s) on which the event(s) on which the claim is based KOENIG AUXVASSE PROPERTY, L.P. occurred. On this 4th day of December 2018 KOENIG AUXVASSE NOTICE: Because of the dissolution of Random App, PROPERTY, L.P., hereinafter referred to as (“LIMITED Inc., any claims against it will be barred unless a proceeding PARTNERSHIP”), iled its Notice of Winding Up for a to enforce the claim is commenced within two years after Limited Partnership with the Missouri Secretary of State. the publication date of the two notices authorized by statute, All persons and organizations with claims against the Limited whichever is published last. Partnership must submit a written summary of any and all claims against the Limited Partnership to ZOLLMANN LAW LLC, Attention: W. J. Zollmann, III, 511 West Pearce NOTICE OF WINDING UP Boulevard, Wentzville, Missouri 63385, which summary shall TO ALL CREDITORS OF AND CLAIMANTS AGAINST include the name, address, and telephone number of the SERENDIPITY GALLERY LLC claimant; the amount of the claim; date(s) the claim accrued; a Serendipity Gallery LLC, a Missouri limited liability company brief description of the nature and basis of the claim; and any (the “Company”), was dissolved on December 9, 2018 by iling a documentation of the claim. Notice of Winding Up with the Missouri Secretary of State. Claims against the Limited Partnership will be barred unless The Company requests that all persons and entities with a proceeding to enforce the claim is commenced within three (3) claims against the Company present them in writing and by mail years after the publication of this notice. to Lisa A. Houdyshell, 8124 General Sheridan Lane, St. Louis, MO 63123. Each claim must include: NOTICE OF WINDING UP 1. The name, address, and telephone number of the claimant; TO ALL CREDITORS OF AND CLAIMANTS AGAINST 2. The amount of the claim; MAXSON-SPA BUILDING LLC 3. The basis of the claim; Maxson-Spa Building LLC, a Missouri limited liability 4. The date the claim arose; and company, iled its Notice of Winding Up for Limited Liability 5. Documentation of the claim. Company with the Missouri Secretary of State on December 11, A claim against the Company will be barred unless a 2018. proceeding to enforce the claim is commenced within three (3) Any and all claims against Maxson-Spa Building LLC may be years after the publication of this notice. sent to Rosenblum Goldenshersh, P.C., c/o David S. Lang, Esq., 7733 Forsyth Blvd., 4th Floor, St. Louis, MO 63105. Each claim should include the following information: the name, address, and NOTICE OF WINDING UP telephone number of the claimant; the amount of the claim; the OF LIMITED PARTNERSHIP TO ALL basis of the claim; and the date(s) on which the event(s) on which CREDITORS OF AND CLAIMANTS AGAINST the claim is based occurred. KOENIG WILLIAMSBURG PROPERTY, L.P. Any and all claims against Maxson-Spa Building LLC will be On this 4th day of December 2018 KOENIG barred unless a proceeding to enforce such claim is commenced WILLIAMSBURG PROPERTY, L.P., hereinafter referred to within three (3) years after the date this notice is published. as (“LIMITED PARTNERSHIP”), iled its Notice of Winding Up for a Limited Partnership with the Missouri Secretary of State. NOTICE OF DISSOLUTION TO ALL All persons and organizations with claims against the Limited CREDITORS OF AND CLAIMANTS AGAINST Partnership must submit a written summary of any and all DIAMOND LITE, INC. claims against the Limited Partnership to ZOLLMANN On December 17, 2018, Diamond Lite, Inc. iled Articles of LAW LLC, Attention: W. J. Zollmann, III, 511 West Pearce Dissolution by Voluntary Action with the Missouri Secretary of Boulevard, Wentzville, Missouri 63385, which summary shall State. The dissolution was efective on December 31, 2018. include the name, address, and telephone number of the Claims against the Corporation must be submitted to claimant; the amount of the claim; date(s) the claim accrued; a Diamond Lite, Inc., c/o Allen & Rector, P.C., Attorneys at Law, brief description of the nature and basis of the claim; and any 135 Harwood Avenue, P.O. Box 1700, Lebanon, Missouri 65536. documentation of the claim. Claims must include: (1) The name, address, and telephone Claims against the Limited Partnership will be barred unless number of the claimant; (2) The amount and date of the claim; a proceeding to enforce the claim is commenced within three (3) and (3) a brief description of the basis of the claim, including years after the publication of this notice. documentation. NOTICE: All claims will be barred unless a proceeding to enforce the claim is commenced within two years after the date of the publication of this notice.
42 mobar.org NOTICE OF CORPORATE DISSOLUTION COMMUNITY VOCATIONAL SCHOOLS OF LAS TO ALL CREDITORS OF AND CLAIMANTS AGAINST VEGAS, LLC MACKS CREEK BANCSHARES, INC. Attn: JR&M, LLC Macks Creek Bancshares, Inc., a Missouri corporation, iled 648 Trade Center Boulevard its Articles of Dissolution with the Missouri Secretary of State. Chesterield, MO 63005 All claims against the corporation should be sent to David or L. Wieland, Wieland & Condry, LLC, 1548 E. Primrose, Ann Bodewes Stephens, Esq. Springield, MO 65804. Each claim should include the Sandberg Phoenix & von Gontard, P.C. following: name, address, and telephone number of the 600 Washington Avenue, 15th Floor claimant; amount of the claim; the date the claim accrued; and St. Louis, MO 63101 the basis of the claim and any documentation. All claims must include the name and address of the claimant; All claims against the corporation shall be barred unless a the amount claimed; the basis for the claim; and the date(s) on proceeding to enforce the claim is commenced within two years which the event(s) on which the claim is based occurred. after the date of this publication. NOTICE: Because of the notice dissolution of COMMUNITY VOCATIONAL SCHOOLS OF LAS VEGAS, LLC, any claim against it will be barred unless a NOTICE OF WINDING UP OF proceeding to enforce the claim is commenced within the LIMITED LIABILITY COMPANY TO ALL statutorily authorized timeframe after the publication date of the CREDITORS OF AND CLAIMANTS AGAINST notices authorized by statute, whichever is published last. CARRIE REDEVELOPMENT, LLC On December 19, 2018, CARRIE REDEVELOPMENT, LLC, a Missouri limited liability company, iled its Articles of NOTICE OF DISSOLUTION Termination and Notice of Winding Up for Limited Liability TO ALL CREDITORS OF AND CLAIMANTS AGAINST Company with the Missouri Secretary of State, efective on SNAGTAGG LLC December 31, 2018. On November 19, 2018, SNAGTAGG LLC, a Missouri Said limited liability company requests that all persons limited liability company, iled its Notice of Winding Up with and organizations who have claims against it present them the Missouri Secretary of State. Dissolution was efective on immediately by letter to the company at: December 19, 2018. CARRIE REDEVELOPMENT, LLC Said limited liability company requests that all persons Attn: Mary C. Kickham, Manager and organizations who have claims against it present them 14001 New Bedford Court immediately by letter to the company at: Chesterield, MO 63017 SNAGTAGG LLC With a copy to: Attn: James S. Gans Sandberg Phoenix & von Gontard, P.C. 648 Trade Center Boulevard Attn: Anthony J. Soukenik, Esq. Chesterield, MO 63005 600 Washington Avenue, 15th Floor or St. Louis, MO 63101 Ann Bodewes Stephens, Esq. (314) 231-3332 Sandberg Phoenix & von Gontard, P.C. All claims must include the name and address of the 600 Washington Avenue, 15th Floor claimant; the amount claimed; the basis for the claim; and St. Louis, MO 63101 the date(s) on which the event(s) on which the claim is based All claims must include the name and address of the claimant; occurred. the amount claimed; the basis for the claim; and the date(s) on NOTICE: Because of the notice of winding up of CARRIE which the event(s) on which the claim is based occurred. REDEVELOPMENT, LLC, any claim against it will be NOTICE: Because of the dissolution of SNAGTAGG LLC, barred unless a proceeding to enforce the claim is commenced any claim against it will be barred unless a proceeding to enforce within three (3) years after the publication date of the notices the claim is commenced within the statutorily authorized authorized by statute, whichever is published last. timeframe after the publication date of the notices authorized by statute, whichever is published last.
NOTICE OF DISSOLUTION TO ALL CREDITORS OF AND CLAIMANTS AGAINST NOTICE OF DISSOLUTION OF COMMUNITY VOCATIONAL SCHOOLS OF LIMITED LIABILITY COMPANY TO ALL LAS VEGAS, LLC CREDITORS OF AND CLAIMANTS AGAINST On December 19, 2018, COMMUNITY VOCATIONAL CASA BELLA DEVELOPMENT, LLC SCHOOLS OF LAS VEGAS, LLC, a Missouri limited liability On December 14, 2018, Casa Bella Development, LLC, a company, iled its Notice of Winding Up with the Missouri Missouri limited liability company, iled its Notice of Winding Secretary of State, efective on December 19, 2018. Up for Limited Liability Company with the Missouri Secretary Said limited liability company requests that all persons of State. and organizations who have claims against it present them Said limited liability company requests that all persons and immediately by letter to the company at: organizations who have claims against it present them by letter immediately to the company in care of: Rick J. Muenks, Attorney @MoBarNews @MoBarNews 43 at Law, 3041 S. Kimbrough Avenue, Suite 106, Springield, limited liability company, iled its Notice of Winding Up for Missouri 65807. Claims must include name and address of Limited Liability Company with the Missouri Secretary of State. claimant; amount of claim; basis of claim; and documentation Said limited liability company requests that all persons and of claim. organizations who have claims against it present them by letter Pursuant to Section 347.141 RSMo, any claim against Casa immediately to the company in care of: Rick J. Muenks, Attorney Bella Development, LLC will be barred unless a proceeding at Law, 3041 S. Kimbrough Avenue, Suite 106, Springield, to enforce the claim is commenced within three years after the Missouri 65807. Claims must include name and address of publication of this notice. claimant; amount of claim; basis of claim; and documentation of claim. NOTICE OF DISSOLUTION OF Pursuant to Section 347.141 RSMo, any claim against LIMITED LIABILITY COMPANY TO ALL Lexington Square, LLC will be barred unless a proceeding to CREDITORS OF AND CLAIMANTS AGAINST enforce the claim is commenced within three years after the LEXINGTON SQUARE, LLC publication of this notice. On December 14, 2018, Lexington Square, LLC, a Missouri
The Flag 4 Id. at *1. Continued from page 12 5 Id. at *3. 6 Id. Southers v. City of Farmington, 7 Id. at *4. doctrine in Missouri. 263 8 Smock v. Associated Electric Cooperative, No. WD81326, 2018 WL 6615455 (Mo. S.W.3d 603, 610 (Mo. banc 2008). The protection is App. W.D. iled Dec. 18, 2018). codiied by Sections 537.600 to 537.650. As a public 9 Id. at *1. 10 Id. at *2. entity, Bi-State was entitled to sovereign immunity from 11 Id. tort liability except to the extent immunity was waived 12 Id. under Section 537.600.52 13 Id. 14 Id. 15 Id. at *4. “By its plain language, Section 537.600 applies to the “public 16 Id. entity,” Bi-State, and not its employee, Allen. Additionally, by its 17 Id. 18 Id. at *5. plain language, it is clear that the statutory immunity aforded 19 Id. at *6. Bi-State under the statute does not apply to its employee 20 Id. at *7. driver.”53 “Section 537.610.5 further provides for annual 21 State of Missouri ex rel. PPG Industries v. McShane, No. SC97006, 560 S.W.3d 888 (Mo. banc 2018). adjustments on the limit amounts listed, and, at the time of trial 22 Id. court’s amended judgment in 2017, the limit amount for a single 23 Id. at 890. accident or occurrence was $414,418 (rather than $300,000).”54 24 Id. 25 Id. at 891. 26 Id. We ind State ex rel. Trimble v. Ryan, 745 S.W.2d 27 Id. 672,675 (Mo. banc 1988) directly on point. In Trimble, 28 Id. at 892. 29 Id. at 893. an action arose out of alleged negligence in a driver’s 30 Id. operation of a Bi-State bus. The Missouri Supreme 31 Id. Court concluded that Bi-State was entitled to sovereign 32 Id. 33 Eof v. McDonald, No. ED106265, 2018 WL 6061002 (Nov. 20, 2018). immunity under Section 537.600 and a reduction of 34 Id. the damage award under Section 537.610; however, the 35 Id. at *1. Court speciically held Bi-State’s driver was not entitled 36 Id. 55 37 Id. to a reduction. 38 Id. 39 Id. at *2. “More recent caselaw has similarly found that the immunity 40 Id. 41 Id. provision does not apply to the agent-employee of the 42 Id. at *3. 56 government entity….” “Therefore, because Missouri law 43 Id. clearly provides that the statutory cap set forth in Section 44 Id. at *4. 45 Id. at *5. 537.610.2 does not apply to public employees arising out of 46 Brancati v. Bi-State Development Agency, No. ED106359, 2018 WL 6613412 the operation of motor vehicles within the course of their (Dec. 18, 2018). employment, the trial court did not err in denying Appellants’ 47 Id. 57 48 Id. at *1. Motion for Remittitur with respect to Allen.” 49 Id. at *4. 50 Id. Endnotes 51 Id. at *7. 52 Id. 1 W. Dudley McCarter, a former president of The Missouri Bar, is a partner 53 Id. in the St. Louis law irm of Behr, McCarter & Potter, P.C. 54 Id. 2 Crawford v. Distributor Operations, Inc., No. ED105890, 2018 WL 5259651 (Mo. 55 Id. at *8. App. E.D. iled Oct. 23, 2018). 56 Id. 3 Id. 57 Id. at *9. 44 mobar.org Striking the Right Balance 31 Id. 32 See Marlee Kind Dillon, eT al., Henderson Instructions: Do They Enhance Continued from page 17 Evidence Evaluation?, 17 j. foReNsic Psychol. ReseaRch & PRac. 1 (2017); Athan P. Papailious eT al., The Novel New Jersey Eyewitness Instruction Induces Skepticism but Not Sensitivity, PLOSONE (Dec. 9, 2015), https://journals.plos.org/plosone/ 4 Id. article?id=10.1371/journal.pone.0142695; Angela M. Jones & Steven Penrod, 5 People v. Lerma, 47 N.E.3d 985, 993 (Ill. 2016) (citing State v. Dubose, 699 Improving the Efectiveness of Henderson Instruction Safeguard Against Unreliable Eyewitness N.W.2d 582, 591-92 (Wis. 2005)). Identiication, 24 Psychol., cRiMe & l. 177 (2017). 6 Tricia Bushnell & Amol Sinha, Show Me Real Eyewitness ID Reform, sT. louis 33 Athan P. Papailious eT al., The Novel New Jersey Eyewitness Instruction Induces PosT disPaTch, Jan. 22, 2016, http://www.stltoday.com/opinion/columnists/ Skepticism but Not Sensitivity, PLOSONE (Dec. 9, 2015), https://journals.plos. show-me-real-eyewitness-id-reform/article_74e36781-0ca1-5636-ab48- org/plosone/article?id=10.1371/journal.pone.0142695 29e071ee9682.html. 34 Id. 7 Adam Liptak, 34 Years Later, Supreme Court Will Revisit Eyewitness IDs, N.y. 35 Id. TiMes, Aug. 22, 2011, https://www.nytimes.com/2011/08/23/us/23bar.html. 36 See Statement from Kevin S. Hillman, president of the Missouri Association 8 State v. Henderson, 27 A.3d 872, 878 (N.J. 2011). of Prosecuting Attorneys (Jan. 22, 2016), http://www.prosecutors.mo.gov/iles/ 9 Id. MAPA%20PR%20Eyewitness%20ID%20Jury%20Instruction%20(1).pdf. 10 Id. 37 762 S.W.2d 820, 822 (Mo. banc 1988). 11 Henderson at 904-11; see State v. Lawson, 291 P.3d 673, 687-88 (Or. 2012). 38 Id. at 823. 12 See Melissa Hogenboom, Why Does the Human Brain Create False 39 Id. (citing State v. George, 481 A.2d 1068, 1075 (Conn. 1984)). Memories?, BBC, Sept. 29, 2013, http://www.bbc.com/news/science- 40 780 S.W.2d 45 (Mo. banc 1989). environment-24286258 (“Christopher French of Goldsmiths University in 41 See NaTioNal ReseaRch couNcil, ideNTifyiNg The culPRiT: assessiNg London says there is still a lack of awareness of how unreliable human memory eyewiTNess ideNTificaTioN 38 (2014). is, especially in the legal system. ‘Although this is common knowledge within 42 Id. psychology and widely accepted by anybody who has studied the literature, it’s 43 People v. Lerma, 47 N.E.3d 985, 993 (Ill. 2016). not widely known about in society more generally,’ he says.”). 44 In fact, in Commonwealth v. Walker, 92 A.3d 766, 782-83 (Pa. 2014), the 13 See Daniel J. Simons & Christopher F. Chabris, What People Believe About Supreme Court of Pennsylvania collected cases from 44 states, the District of How Memory Works: A Representative Survey of the U.S. Population, Plos oNe 6(8): Columbia, and 10 federal circuit courts, noting “there is a clear trend among e22757 (2011), https://journals.plos.org/plosone/article?id=10.1371/journal. state and federal courts permitting the admission of expert eyewitness testimony, pone.0022757. at the discretion of the trial court, for the purpose of aiding the trier of fact in 14 Elizabeth F. Loftus, Juries Don’t Understand Eyewitness Testimony, understanding the characteristics of eyewitness identiication.” Interestingly, it N.y. TiMes (Sept. 1, 2011, 11:32 AM), https://www.nytimes.com/ included Missouri as a state following this trend, citing State v. Ware, 326 S.W.3d roomfordebate/2011/08/31/can-we-trust-eyewitness-identiications/juries-dont- 512 (Mo. App. S.D. 2010). In that case, however, the Southern District did not understand-eyewitness-testimony. permit the admittance of such testimony, but rather, citing Lawhorn and Whitmill, 15 See id; Kate A. Houston et al., Expert Testimony on Eyewitness Evidence: In Search found no abuse of discretion in a trial court’s decision to grant a prosecutor’s motion of Common Sense, Behav. sci. & l. 637, https://onlinelibrary.wiley.com/doi/ in limine to exclude “testimony from [defendant’s] expert witness concerning the abs/10.1002/bsl.2080; Liptak, supra note 6. fallibility of eyewitness identiication testimony.” Id. at 526, 529-30. 16 There is much debate as to the correlation between eyewitness conidence 45 Section 490.065, RSMo 2017; see also Daubert v. Merrell Dow Pharm., 509 and accuracy. See Brandon L. Garrett, Eyewitnesses and Exclusion, 65 vaNd. l. Rev. U.S. 579 (1993). Prior to Missouri’s adoption of the Daubert standard, trial courts 451, 469 (2012), https://wp0.vanderbilt.edu/lawreview/wp-content/uploads/ had to irst ind the underlying science was generally accepted as reliable by the sites/89/2012/03/Garrett_65_Vand_L_Rev_451.pdf. relevant scientiic community in order to allow the expert to testify in a criminal 17 Watkins v. Sowders, 449 U.S. 341, 352 (1981) (Brennan, J., dissenting) case. See State v. Keightley, 147 S.W.3d 179, 187 (Mo. App. S.D. 2004). Now, (emphasis in original omitted) (quoting elizaBeTh f. lofTus, eyewiTNess the trial judge has broad discretion in determining the reliability of scientiic TesTiMoNy 189-190 (1979)). knowledge after considering a number of factors. 18 MAI 310.02 Eyewitness Identiication Testimony (Approved December 16, 46 274 S.W.3d 514, 527 (Mo. App. W.D. 2008). 2015), https://www.courts.mo.gov/ile.jsp?id=95086. 47 State v. Body, 366 S.W.3d 625, 629 (Mo. App. E.D. 2012). 19 565 U.S. 228, 246 (2012) (addressing the “safeguards built into our 48 Section 547.200, RSMo 2017. adversary system that caution juries”). Id. at 245. 49 State v. Naylor, 505 S.W.3d 290, 298 (Mo. App. W.D. 2016); State v. Ware, 326 20 Order dated April 2, 2015: re: Additions to MAI-CR 3d, https://www. S.W.3d 512, 528-29 (Mo. App. S.D. 2010); State v. Allen, 274 S.W.3d 514, 526-27 courts.mo.gov/sup/index.nsf/9f4cd5a463e4c22386256ac4004a490f/9e2d3a1ae (Mo. App. W.D. 2008); State v. Cunningham, 863 S.W.2d 914, 923 (Mo. App. E.D. 4baba6e86257e1b00644d44?OpenDocument. 1993); State v. Donnell, 862 S.W.2d 445, 450-51 (Mo. App. W.D. 1993); State v. Hill, 21 Id. at 1. 854 S.W.2d 486, 487-88 (Mo. App. E.D. 1993); State v. Simpson, 793 S.W.2d 182 22 MAI 310.02 Eyewitness Identiication Testimony (Approved December 16, (Mo. App. E.D. 1990). See also Morgan v. Steele, No. 4:07-CV-0877-TCM, 2010 2015), https://www.courts.mo.gov/ile.jsp?id=95086 WL 3564425, at *9 (E.D. Mo. Sept. 7, 2010) (inding there was no due process 23 Order dated April 2, 2015: re: Additions to MAI-CR 3d, https://www. violation by the exclusion of expert testimony on the reliability of eyewitness courts.mo.gov/sup/index.nsf/9f4cd5a463e4c22386256ac4004a490f/9e2d3a1ae identiication). 4baba6e86257e1b00644d44?OpenDocument. 50 See e.g., State v. Carr, 331 P.3d 544, 690 (Kan. 2014) (inding “it is an abuse of 24 Id. discretion for . . . trial [courts] to automatically exclude [such] testimony”); People 25 State v. Henderson, 27 A.3d 872, 895 (N.J. 2011). v. Lerma, 47 N.E.3d 985, 996-97 (Ill. 2016); Commonwealth v. Walker, 92 A.3d 766, 26 Amy D. Trenary, State v. Henderson: A Model for Admitting Eyewitness Identiication 792-93 (Pa. 2014) (inding such testimony is no longer per se admissible); State v. Testimony, 84 U. Colo. L. Rev. 1257, 1301 (2013). Copeland, 226 S.W.3d 287, 304 (Tenn. 2007). 27 See New jeRsey Model cRiMiNal juRy chaRges (2018), https://www. 51 State v. Henderson, 27 A.3d 872, 895 (N.J. 2011). judiciary.state.nj.us/attorneys/criminalcharges.html. 52 Naylor, 505 S.W.3d at 298. 28 Henderson, 27 A.3d at 924. 53 Id. 29 Statement from Kevin S. Hillman, president of the Missouri Association 54 Andrew E. Taslitz, “Curing” Own Race Bias: What Cognitive Science and the of Prosecuting Attorneys (Jan. 22, 2016), http://www.prosecutors.mo.gov/iles/ Henderson Case Teach About Improving Jurors’ Ability to Identify Race-Tainted Eyewitness MAPA%20PR%20Eyewitness%20ID%20Jury%20Instruction%20(1).pdf. Error, 16 legis. & PuB. Pol. 1049, 1056 (2013). 30 Position Paper on Proposed MAI 310.02 Relating to Eyewitness Identiication, MissouRi associaTioN of PRosecuTiNg aTToRNeys, http://www.prosecutors. mo.gov/iles/Eyewitness%20ID%20Instruction%20Position%20Paper.pdf.
@MoBarNews @MoBarNews 45 Business Contracts and court considered the plain language of the operating agreement Their Consequences and held that the provision precluded recovery on Schnuck’s negligence claim, and dismissed the claim to the extent it sought Continued from page 21 damages barred by the provision limiting liability.73 Jacobson demonstrates both the wisdom in, and potential danger of, Adams to either accept Forbush’s ofer in its entirety or purchase liability limitation provisions. These provisions can protect Forbush’s shares on the same terms and conditions as contained parties from future internal disputes, but may also have the efect in Forbush’s ofer (including the unrelated terms). of limiting legal remedies in the event of a total breakdown of The court held that “[b]ecause Texas Shootout Provisions are the relationship. focused on setting a fair buyout price and nothing in the cross- purchase agreement indicated the Texas Shootout Provision in Important Issues to Consider When Drafting this case was meant to encompass anything beyond that, . . . Agreements and Litigating Claims the additional terms and conditions in Forbush’s ofer were not The Economic Loss Doctrine contemplated by the Texas Shootout Provision.”64 Therefore, The economic loss doctrine prohibits a plaintif from seeking Forbush’s ofer did not conform to the requirements of the to recover in tort for economic losses that are contractual in agreement’s Texas Shootout Provision. nature.74 “The doctrine exists to protect the integrity of the Although non-conforming, the Eastern District held that bargaining process, through which the parties have allocated Forbush’s ofer was not entirely void, as the parties need not the costs and risks.”75 “Missouri courts have recognized speciic be conined to the dictates of the Texas Shootout Provision in exceptions to the economic loss doctrine in cases involving a winding up their business.65 After considering Adams’ partial iduciary relationship or negligence in providing professional acceptance of Forbush’s ofer, the Eastern District held that services. Another recognized exception applies where the Adams’ “purported acceptance” was in fact a “counterofer” as it defendant breached a public duty.”76 “introduce[d] new or variant terms[.]”66 Because Forbush never In Jacobson, plaintif XPO entered into an operating responded to Adams’ counterofer, the counterofer failed, and agreement with defendant Schnuck “setting forth terms and the parties never reached an enforceable agreement.67 conditions under which XPO would provide certain warehouse management services for [Schnuck’s] new distribution facility.”77 Contractual Limitations on Remedies and Damages Ultimately, the relationship deteriorated, and in the ensuing Another provision that partners, shareholders, or members litigation between the parties, “Schnuck allege[d] that XPO was may include in their governing contractual business agreement negligent in operating the Facility. Speciically, Schnuck claimed is a “limitation of liability or damages” provision. Such a that XPO breached its duty of care by ‘failing to conduct its provision places limitations or prohibitions on a party’s exposure operations pursuant to prevailing warehouse industry practices to legal liability or damages. An example of such a provision and inadequately planning, hiring, training, staing, and was considered in Jacobson Warehouse Co., Inc. v. Schnuck Markets, supervising’ at the Facility.”78 Inc.68 In Jacobson, the parties’ agreement included the following “limitation of ” provision: XPO [alleged] that Schnuck’s negligence claim should be dismissed [pursuant to] the economic loss doctrine [U]nless otherwise prohibited by law, neither party shall because it is not independent of its breach of contract be liable for incidental or consequential damages or claim; both claims reference the same subject matter of indirect, special or punitive damages. Notwithstanding the Agreement – management of the Facility, and the the foregoing limitations on types of damages, in the same standard of care – “prevailing warehouse industry event that [the plaintif, d/b/a XPO Logistics Supply standards.”79 Chain] would otherwise be liable to Schnucks for consequential, indirect, special or punitive damages, The Eastern District disagreed with XPO and denied its XPO shall be liable to Schnucks for such damages up motion to dismiss Schnuck’s negligence claim on the basis of to Schnucks’ self-insured retention under any applicable the economic loss doctrine. Although XPO’s agreement “to insurance policy maintained by Schnucks, not to exceed adhere to [certain] performance requirements” originated in the Five Hundred Thousand Dollars ($500,000)[.] 69 operating agreement, Missouri law provides that “while a mere breach of contract does not provide a basis for tort liability, the The U.S. District Court for the Eastern District of Missouri negligent act or omission which breaches the contract may serve considered whether such a provision barred the defendant’s as a basis for an action in tort.”80 negligence claim. Defendant Schnuck contended that the In determining whether a claim is prohibited by the economic provision applied only “to contractual claims under the agreement, and loss doctrine, the following should be considered: “If the duty [did] not waive liability for damages consequential to a negligence arises solely from the contract, the action is contractual. The claim.”70 The plaintif, on the other hand, argued that the action may be in tort, however, if the party sues for breach of limitation of liability provision applied to Schnuck’s negligence a duty recognized by the law as arising from the relationship or claim, and the claim must therefore be dismissed. status the parties have created by their agreement.”81 “It is well-settled in Missouri that sophisticated business Applying this, the Eastern District held that because entities may contractually limit future remedies.”71 Such “[c]ontractual limitations of liability . . . for consequential Schnuck allege[d] that XPO was obligated to “perform damages do not violate public policy where the language is ‘clear, the services necessary for the proper, accurate and eicient unambiguous, unmistakable, and conspicuous.’”72 The Jacobson operation of the Facility” and to perform those services 46 mobar.org “in a good, professional, workmanlike, expeditious, and . . . last pronouncement by the Supreme Court of economical manner, consistent with the most eicient Missouri…in Grissum [v. Reesman], 505 S.W.2d 81, noted operation of the warehouse in accordance with the that the burden is a preponderance of the evidence standards and prevailing practices in the warehouse unless the joint venture at issue involves “an oral contract industry,” . . . Schnuck’s negligence claim [did] not arise to convey real estate or the establishment of a resulting solely in contract and [would] not be dismissed [pursuant trust in real property,” in which case the higher clear and to the economic loss doctrine.]82 convincing burden applies.92
Additionally, the Eastern District held that where, as in Relying on this Supreme Court of Missouri precedent, the Jacobson, the “contracting parties ‘require the exercise of Morley court held that the correct standard in determining reasonable skill, diligence, and care in the handling of business whether a joint venture exists is preponderance of the evidence.93 “The given over or entrusted to’ a defendant, a special relationship . . . clear and convincing standard . . . is simply the exception to the is created by [that] contract.”83 In that case, “[a] tort action may general rule for those two particular categories of cases.”94 be pursued ‘if the party sues for breach of a duty recognized by Applying the preponderance of the evidence standard, the the law as arising from the relationship or status the parties have Morley court considered whether there was a dispute of fact created by their agreement.’”84 regarding the existence of a joint venture. Plaintif Morley Lastly, Schnuck “assert[ed] that because XPO provided argued there was “ample evidence of the parties’ . . . intent to professional services to Schnuck and held itself out as a carry on . . . as co-owners[,]”95 including: professional by representing it was skilled in the warehousing business and capable of operating the Facility consistently with (1) the circumstances of Morley’s invitation to be part of prevailing practices in the warehousing industry, the professional the enterprise; (2) the transformative nature of Morley’s services exception to the economic loss doctrine applie[d].”85 . . . contribution; (3) the lack of a consulting agreement The professional services exception to the economic loss doctrine [with Morley] in light of the fact that other “consultants” “is applied to negligence claims involving [individuals] who have had such agreements; . . . ([4]) verbal and written been held to a professional, rather than an ordinary, standard representations by the parties and others; and ([5]) [the of care and who have provided professional services to the defendants’] inal negotiations with Morley.96 plaintif.”86 The court agreed that this exception could apply, and declined to rule that Schnuck’s negligence claim arose solely in Defendants, on the other hand, argue[d] that [a joint contract and was barred by the economic loss doctrine. venture did not exist because] Morley did not share in the company’s proits or risk of losses, had no voice in Joint Ventures and Morley v. Square, Inc. management or role in the direction of the company, A “joint venture” is subject to the same legal principles as a had no role in employment decisions, had no ability to partnership.87 “Indeed, the legal principles for determining the enter contracts for the company, was not held out as a existence of a joint venture have been said to be identical to partner [to third-parties, and was willing to] accept[] a those for determining a partnership, and the two may be created mere 1% . . . stake in the company.”97 in the same ways.”88 In Morley, the U.S. District Court for the Eastern District of Missouri, Eastern Division, applied Missouri The court considered the parties’ arguments and explained law to determine whether a joint venture existed between that “when one party contributes the capital and the other the plaintif Morley and defendants McKelvey and Dorsey. Plaintif labor, skill or experience for carrying on a joint enterprise, such a Morley “allege[d] that Dorsey, McKelvey, and Morley ‘agreed combination constitutes a partnership unless something appears to create and develop a mobile credit card transaction business’ to indicate the absence of a joint ownership of the business and which ‘used [plaintif] Morley’s inventions [and ideas].’”89 proits.”98 Further, the court explained that, pursuant to Missouri law, “‘there need not necessarily be an agreement to share losses” Plaintif [Morley] allege[d] that McKelvey and Dorsey in order to ind an implied partnership.”99 The court ultimately breached the [joint venture] agreement by refusing to denied defendants’ motion for summary judgement, inding that recognize Morley’s one-third ownership and control it was interests, incorporating a new company, funneling all assets out of the joint venture and into that new company, clear to this Court that McKelvey and Dorsey intended and excluding Morley from ownership in and control of to work with Morley to build a business in the mobile that company.90 payments industry. Whether or not that intention rose to the level of a joint venture or partnership appears to this McKelvey and Dorsey sought summary judgment on Morley’s Court to be a question for the jury.100 joint venture claim, arguing that Morley could not “overcome the steep standard of proof required to establish [the] claim.”91 An important factor for the court was that Morley’s idea This argument required the court to determine which burden in using a cell phone to read a credit card’s magnetic strip (as of proof standard is required “to establish a joint venture”; i.e., opposed to defendants’ original idea of using the phone camera to “a preponderance of the evidence standard” or “a clear and capture credit card numbers) was transformative because it changed convincing evidence standard.” The court acknowledged that the entire direction of defendants’ thinking and business plan: Missouri law was confusing on the issue, but that the Plaintif asks how defendants could pursue an entire business on that idea, in collaboration with Morley, and
@MoBarNews @MoBarNews 47 not believe that such a pursuit and collaboration was Operating Agreement. He signed that document in his capacity signiicant, probative evidence of whether or not the as the trustee of the John S. Wehrle Revocable Living Trust.”106 parties intended to carry on as co-owners. This Court As such, Wehrle could not be held liable in his individual agrees. capacity for breach of the operating agreement. Morley had not suggested a mere logo or a company This standard similarly applies to arbitration provisions name – his idea and prototype shaped the company in operating agreements.107 In Springield Iron & Metal, LLC v. itself.101 Westfall, the Missouri Court of Appeals – Southern District considered whether individuals who sign an operating agreement The court rejected defendants’ argument that the court’s in their representative capacities could enforce an arbitration denial of their motion for summary judgment would “open the provision located in the operating agreement for claims they loodgates to partnership claims by every entry level startup bring individually. The company at issue – Springield Iron & employee.”102 The court explained: Metal, LLC – had two members: Westfall (an individual) and Griesedieck Brothers (an LLC with two owners – Paul and [D]efendants once again downplay the importance Chris). Westfall signed Springield Iron & Metal, LLC’s operating of Morley’s contribution and role within the business. agreement in his individual capacity.108 Paul and Chris signed the Considering the totality of the circumstances – operating agreement in their representative capacities as members the parties’ preexisting relationships, McKelvey’s of Griesedieck Brothers, LLC.109 During an ensuing lawsuit invitation to “play” and earlier communications about between the parties in which Paul, Chris, and Springield Iron & entrepreneurial activity with Morley, the transformative Metal brought claims against Westfall, Paul and Chris moved to nature of Morley’s idea and his work in bringing that compel arbitration on all claims based on Springield’s operating idea to life, Morley’s continued role within the business agreement.110 and his work to patent the card reader (paid for by Westfall contended that only the agreement’s signers were McKelvey), the promise of a “stock deal,” just to name subject to arbitration.111 Paul and Chris irst argued that they a few – there is at least a question of fact as to whether were “‘entitled to the beneit of arbitration’ because [they] each the parties intended to carry on this business as co- had a ‘close relationship’ with [Griesedieck Brothers, LLC (which owners.103 signed the operating agreement)] and non-arbitration of their claims ‘would eviscerate’ [Springield’s] operating agreement.”112 The court went on to deny defendants’ motion for summary The court disagreed, holding that “[t]o compel arbitration of judgment as it related to plaintif Morley’s fraud-based claims. non-signatory claims – even those ‘inextricably intertwined’ Morley contended – and the court agreed – that when the with signatory claims – ‘is inconsistent with the overarching rule evidence was presented to the jury, “the same facts that support that arbitration is ultimately a matter of agreement between the Morley’s joint venture claim could alternatively lead the jury to parties.’”113 a slightly diferent conclusion: that is, although defendants may The court further rejected the argument that, as the agents not have intended to start a business as co-owners with Morley, for Griesedieck Brothers, LLC, Paul and Chris share the LLC’s they did intend to defraud him in order to obtain, without “power to compel arbitration under the operating agreement[:]” compensation, his contributions.”104 Morley is an important case for business attorneys to be familiar The agreement does not name the Griesediecks as with, as it provides an example of individuals coming together parties or treat them as such, nor did they sign it as to perform business without drawing clear lines as to what their individuals, but only as members of [Griesedieck relationship will consist of, resulting in a ight over a joint venture Brothers, LLC]. By signing only as agents in a claim. Morley also demonstrates that in the event a plaintif is representative capacity, the Griesediecks are not bound wrong that a partnership or joint venture existed between the by or to the agreement as individuals…. It is the parties, the plaintif may still have a viable fraud claim on which principal that can be bound by the signature of the he can recover. agent, not the agent that can be bound by the signature of the principal.114 Who Can Be Held Liable for Breach of Contract? A person can be held liable for breaches of a corporate The court similarly found unconvincing Paul’s and Chris’s agreement if that person signed the agreement in their individual capacity. argument that it was “‘only logical’ and eicient for everyone to This is distinguishable from a situation in which a person signs in arbitrate” all claims together and that “inconsistency [may arise] a representative capacity, such as on behalf of an entity or trust. In if some claims are arbitrated while others are not.”115 The court that situation, the person will not be held liable in his individual held that the Supreme Court of Missouri “deems arbitration capacity. a matter of agreement, even if arbitrated and non-arbitrated In Gryphon Investments III, LLC ex rel. Schenk v. Wehrle,105 for issues are ‘inextricably intertwined.’”116 “We are not free to example, the court dismissed a breach of contract claim where erode arbitration’s voluntary nature for the sake of judicial the plaintif sought to hold a defendant individually liable based convenience.”117 on the defendant’s signature on the operating agreement in his capacity as a trustee. The court stated: “Gryphon III alleges that Business Contracts – Unlimited Power? Wehrle’s actions of diverting funds from Gryphon III breached While parties have broad discretion to enter into contractual the Operating Agreement. However, Wehrle is not a party to the agreements to govern their business relationships, such discretion
48 mobar.org is not unlimited. For example, business owners may not enter 10 Id. into agreements that violate state or federal laws. This was 11 Grissum v. Reesman, 505 S.W.2d 81, 86 (Mo. 1974). 118 12 541 S.W.3d 616, 621 (Mo. App. W.D. 2017). demonstrated in Grillo v. Global Patent Group LLC, in which 13 CB3 Enterprises LLC, 415 S.W.3d at 166. the Missouri Court of Appeals – Eastern District held that a 14 Exec. Bd. of Mo. Baptist Convention, 280 S.W.3d 678, 687 (Mo. App. W.D. nonlawyer oicer manager’s alleged agreement with a lawyer 2009). to share in the proits of the lawyer’s irm was unenforceable, 15 Birkenheimer v. Keller Biomedical, LLC, 312 S.W.3d 380, 391 (Mo. App. E.D. 2010), quoting § 347.015(13), RSMo 2016. as it violated a Missouri statute prohibiting the splitting of 16 Nicolazzi v. Bone, No. ED 106292, 2018 WL 6052144 (Mo. App. E.D. Nov. compensation with nonlawyers. 20, 2018). Additionally, minority shareholders, members, and partners 17 Id. at *7. may have claims against majority shareholders, managers, or 18 Id. at *6. 19 Id. controlling partners if the corporate agreements between the 20 Id. at *5. parties are breached, applied oppressively, or applied in ways 21 Id. at *2. that breach the defendants’ iduciary duties.11 22 Nicolazzi at *7. 23 Id. at *6. 24 Id. at *4. Conclusion 25 Id. Attorneys representing business clients must be familiar with 26 Id. the types of agreements and provisions that can be useful, or 27 Id. at 393. should be avoided, in business entities. What type of entity 28 486 S.W.3d 438, 448-49 (Mo. App. E.D. 2016). 29 Lerner at 449. and what type of agreement best suits the client? Should the 30 Id. agreement include exit ramps, with buyout formulas, in the event 31 550 S.W.3d 505 (Mo. App. E.D. 2017). of disability or death? What iduciary duties should be explicitly 32 Guller at 508, quoting § 361.467, RSMo 1994. discussed in the agreement? Attorneys well-versed in the 33 Id. at 509. 34 Id. at 511. statutory provisions related to partnerships, LLCs, corporations, 35 Id. and joint ventures, along with the applicable case law, will be 36 Id. at 512. best able to assist their business clients. Absent clear agreements, 37 389 S.W.3d 215 (2012). the parties’ rights when things go wrong will then often depend 38 LaRue, 389 S.W.3d 215 (West Headnotes 2). 39 Schmersahl, Treloar & Co. v. McHugh, 28 S.W.3d 345, 350 (Mo. App. E.D. on case law dealing with iduciary duties and shareholder and 2000). member oppression. 40 JTL Consulting, L.L.C. v. Shanahan, 190 S.W.3d 389, 396 (Mo. App. E.D. 2006) (citations omitted) (emphasis added). Endnotes 41 Id.; Renal Treatment Centers–Mo., Inc. v. Braxton, 945 S.W.2d 557, 563 (Mo. App. E.D. 1997). 1 Gerard V. Mantese is the CEO of Mantese 42 614 F.3d 893 (8th Cir. 2010). Honigman, PC, with oices in St. Louis, New York 43 Id. at 904. City, and Troy, Michigan. He handles complex 44 869 S.W.2d 239 (Mo. App. S.D. 1993). business litigation in courts around the country, 45 930 S.W.2d 14 (Mo. App. E.D. 1996). focusing on shareholder and member disputes, 46 Barton, 614 F.3d at 904 (citations omitted) (discussing Sturgis, at 17). partnership litigation, iduciary duties, and contract 47 Id. at 905. disputes. Theresamarie Mantese is a partner at 48 Id. Mantese Honigman, P.C., with more than 35 49 Id. years’ experience as a business and health care Id. attorney. She focuses her practice primarily on 50 51 Id. representing and advising health care providers and 52 Id. at 906. Gerard V. Mantese professionals in matters such as group practice and 53 Id. (citations omitted). other business organizations, contracts, third party 54 Forbush v. Adams, 460 S.W.3d 1, 6 (Mo. App. E.D. 2014). payer audits and reimbursement, fraud-and-abuse 55 Id. issues, professional license disciplinary actions, 56 Id. hospital staf privilege actions, legislative issues and 57 Id. joint ventures. Fatima M. Bolyea is an associate 58 Id. (citing Douglas G. Baird and Donald S. Bernstein, Absolute Priority, at Mantese Honigman, P.C. and she focuses Valuation Uncertainty, and the Reorganization Bargain, 115 yale l.j. 1930, 1953 (June her practice on complex commercial litigation, 2006)). shareholder business disputes, and health care law. 59 Forbush, 460 S.W.3d at 6. 2 See CB3 Enterprises LLC v. Damas, 415 S.W.3d 60 Id. at 5. 163, 166 (Mo. App. W.D. 2013). 61 Id. 3 See McGuire v. Lindsay, 496 S.W.3d 599 (Mo. 62 Forbush, 460 S.W.3d at 3. Theresamarie Mantese App. E.D. 2016). 63 Id. at 3. 4 See Weber v. Moerschel, 313 S.W.3d 220 (Mo. 64 Id. at 7. App. E.D. 2010). 65 Id. 5 Hillme v. Chastain, 75 S.W.3d 315, 317 (Mo. 66 Id. App. S.D. 2002) (citing § 358.070, RSMo 1994). 67 Id. 6 Morrison v. Labor & Indus. Relations Comm’n, 23 68 No. 4:17-CV-00764 JAR, 2017 WL 5885669 (E.D. Mo. Nov. 29, 2017). S.W.3d 902, 908 (Mo. App. W.D. 2000). 69 Jacobson, 2017 WL 55885669 at *13, n. 3. 7 Binkley v. Palmer, 10 S.W.3d 166, 169 (Mo. App. 70 Id. at *4 (emphasis added). E.D. 1999). 71 Id. (citing Sports Capital Holding, LLC v. Schindler Elevator Corp., No. 4:12-CV- 8 In re Reuter v. Reuter, 427 B.R. 727, 757 (2010). 1108-SNLJ, 2014 WL 1400159, at *2-3 (Mo. App. E.D. 2014)); Purcell Tire & 9 Morley v. Square, Inc., Nos. 4:14cv172, Rubber Co. v. Exec. Beechcraft, Inc., 59 S.W.3d 505, 508 (Mo. banc 2001). 4:10cv2243 SNLJ CONSOLIDATED, 2016 WL 72 Jacobson, 2017 WL 55885669 at *4. Fatima M. Bolyea 1615676 at *7 (E.D. Mo. April 22, 2016).
@MoBarNews @MoBarNews 49 73 Id. at *6. 98 Id. at *8 (citing Van Hoose v. Smith, 198 S.W.2d 23, 27 (Mo. 1940)). 74 Trademark Med., LLC v. Birchwood Labs., Inc., 22 F. Supp. 3d 998, 1002 (E.D. 99 Morley, 2016 WL 1615676 at *8 (citing Beatty v. Garner, 458 S.W.2d 288, 291 Mo. 2014); Jacobson, 2017 WL 55885669 at *3. (Mo. 1970); Bussinger v. Ginnever, 213 S.W.2d 230, 236 (Mo. App. E.D. 1948). 75 Jacobson, 2017 WL 55885669 at *3. 100 Morley, 2016 WL 1615676 at *9. 76 Trademark Med., LLC, 22 F. Supp. 3d at 1002-03 (citations omitted). 101 Id. 77 Jacobson, 2017 WL 55885669 at *1. 102 Id. at *10. 78 Id. at *3. 103 Id. 79 Id. 104 Id. 80 Id. 105 No. 4:15 CV 464 RWS, 2015 WL 4537711 (E.D. Mo July 27, 2015). 81 Id. 106 Id. at *1. 82 Id. (emphasis added). 107 Springield Iron & Metal, LLC v. Westfall, 349 S.W.3d 487 (Mo. App. S.D. 83 Id. 2011). 84 Id. 108 Id. at 489. 85 Id. at *4. 109 Id. 86 Id. 110 Id. 87 Morley v. Square, Inc., Nos. 4:14cv172, 4:10cv2243 SNLJ CONSOLIDATED, 111 Id. 2016 WL 1615676 at *6 (E.D. Mo. April 22, 2016). 112 Id. at 490. 88 Id. (quoting 48A C.J.S. Joint Ventures § 3). 113 Id. 89 Morley, 2016 WL 1615676 at *6. 114 Id. (internal citations omitted). 90 Id. 115 Id. 91 Id. at *7. 116 Id. 92 Id. 117 Id. at 491. 93 Id. 118 471 S.W.3d 351 (Mo. App. E.D. 2015). 94 Id. 119 See, e.g., Fix v. Fix Material Co., 538 S.W.2d 351, 358 (Mo. App. E.D. 1976); 95 Id. Virgil Kirchof Revocable Trust Dated 06/19/2009 v. Moto, Inc., 482 S.W.3d 834, 840 96 Id. (Mo. App. E.D. 2016). 97 Id. at *8.
Writing it Right is innocent of the crime with which he stands charged, the prosecutor has not ‘lost.’”76 Continued from page 27 L.A. Law Because courts call counsel’s hope for dramatic courtroom Among television dramas about lawyers and law enforcement, surprise “pure fantasy”68 and a “prayer,”69 appellate courts citing the runner-up to Perry Mason for the number of citations in the ictional Mason normally airm the trial court’s exercise of federal and state court opinions is undoubtedly L.A. Law, discretion to exclude a witness or to limit cross-examination. which has also led courts to distinguish iction from reality. In United States v. Beck,70 for example, the convicted defendant Commentators suspected that during its run from 1986 to contended that the trial court violated the Sixth Amendment by 1994, the show’s ictional portrayal of law practice not only left limiting his counsel’s questioning of a hostile witness. The U.S. Americans with unrealistic visions about what lawyers do, but Court of Appeals for the 7th Circuit found harmless error.71 “It also encouraged many applicants to pursue law school based on is unlikely that counsel expected [the witness] to break down on unrealistic visions of careers in the fast lane.77 the stand and admit that his perjury was part of an elaborate Law school applications rose as L.A. Law presented the scheme to frame the defendants. Only Perry Mason enjoyed such practice, according to one writer, as “a lifestyle package that moments.”72 involved clothes, friends, relationships, social status and that Courts also cite Perry Mason to reject claims that the assigned elusive ingredient: getting paid for championing social justice counsel’s assertedly inefective assistance denied the defendant causes. . . . There was never a dull client, never a boring case a fair trial. One federal district court explained that “the and in court they were poised and articulate.”78 After the show Constitution guarantees only representation which is reasonably left the air, law school application numbers fell nationwide.79 competent, not the perfection which exists only in iction.”73 Decisions accenting L.A. Law’s unrealistic visions include United In yet another case, a dissenting judge observed that on States v. Prince,80 which airmed the defendant’s convictions for inefectiveness claims, courts “compare counsel’s performance bank robbery and unlawfully using a irearm during commission not to an ideal, Perry Mason-style defense . . . but to what a of a violent crime.81 The U.S. Court of Appeals for the 10th reasonably competent counsel could accomplish under the Circuit began Prince with words of caution: “[T]he would-be circumstances of the case.”74 In 2015, however, the Tennessee lawyer raised on the hit television series, L.A. Law, to believe Supreme Court provided this advice: “[A] lawyer who represents a law degree is that golden ticket to a glamorous career of big criminal clients may be interested in watching Perry Mason . . . money, fast cars and intimate relationships among the beautiful on television, and may even pick up a useful tidbit or two from people may think twice before sending in his or her law school doing so.”75 application when word of this case gets out.”82 The U.S. Court of Appeals for the 5th Circuit has invoked After the trial court twice denied the assigned federal public defense counsel Mason to discuss prosecutors’ professional defender’s requests to withdraw from the case because defendant responsibilities: “[T]he prosecutor’s aim is justice. . . . [W]hen Prince refused to talk to him, the defendant dropped his pants it becomes apparent during the trial of a criminal case, a la the and urinated in front of the jury as the panel was being sworn.83 celebrated ictional career of Perry Mason, that the accused A court-ordered psychological examination found the defendant 50 mobar.org competent to stand trial, and the court of appeals held that the usually represented criminal defendants in The Old Bailey, a district court did not abuse its discretion by refusing to order a court building in central London.96 Horace Rumpole, played by second examination.84 Leo McKern, often referred to his sometimes overbearing wife, “[F]or the one-time budding lawyer whose hopes for a Hilda, as “she who must be obeyed.”97 Courts in the United dazzling life have now been dashed by the facts of this case,” the States have quoted barrister Rumpole by name to illustrate Prince panel suggested “an alternative career in screenwriting.”85 why administrative agency regulations must be obeyed,98 why The panel concluded that “[u]nusual stories like this one are lower courts must apply (and hence “obey”) mandates from apparently standard fare for the ictional television lawyers of higher courts,99 and why persons must heed (and hence “obey”) L.A. Law, who face many obstacles before cashing their paycheck contractual obligations.100 and speeding of to another intimate dinner-party.”86 Television Dramas Unrelated to Lawyers and Law Enforcement Other Television Dramas About Lawyers and Law Enforcement Federal and state judicial opinions have also cited television In addition to Perry Mason and L.A. Law, courts have discussed dramas that treat legal topics only sporadically, if at all. In Mason other television shows about lawyers and law enforcement. v. Smithkline Beecham Corp, for example, the plaintifs – the parents In State v. Taylor, for example, the Missouri Court of Appeals of a 23-year-old woman who committed suicide two days after concluded that the trial court committed no error when it taking Paxil, an anti-depressant drug similar to Prozac – alleged permitted the prosecutor to question prospective jurors about negligence by the defendant manufacturer for not warning that their willingness to convict the defendant on eyewitness testimony taking Paxil increased the risk of suicide.101 The 7th Circuit alone.87 The panel explained that “[g]iven the prevalence of described Prozac this way: “Anyone who has ever watched The television shows such as CSI and Law and Order, a trend exists Sopranos knows that it’s the drug Dr. Jennifer Meli prescribed wherein juries expect the State to present physical evidence on for Tony Soprano after telling him ‘no one needs to sufer from every issue. The trial court does not err in allowing the State to depression with the wonders of modern pharmacology.’”102 ferret out such juror biases during voir dire.”88 Some judges have cited Marcus Welby, M.D. (played by Robert When the convicted defendant asserted his lack of knowledge Young in a drama that aired from 1969 to 1976) as the model about the underlying crime because a witness at trial never family practice physician. The ictional physician, who was referred to stolen tractors as “hot” or “stolen,” the U.S. Court known for his house calls and soothing bedside manner, helped of Appeals for the 6th Circuit concluded that the witness’ one judge discuss whether the defendant physician’s demeanor characterizations “mean[t] nothing” because “[d]iscreet thieves toward an allegedly demanding patient fell short in a medical often sell obviously stolen properly without using the lingo of the malpractice action.103 Visions of Dr. Welby also helped another stereotypical ‘Law & Order’ or ‘N.Y.P.D. Blue’ villain.”89 court explain that jurors weighing expert testimony tended to In Clingman v. State, the Wyoming Supreme Court rejected give more weight to physician witnesses than to psychologists the convicted defendant’s contention that the prosecutor had because of “‘the Marcus Welby Efect’ from the 1970’s television improperly commented to the court about facts that did not series of the same name.”104 concern the crimes to which the defendant had pleaded.90 Rod Serling’s science iction drama, The Twilight Zone (which Finding that the prosecutor’s comments approached impropriety, aired from 1959 to 1964) helped popularize the term that two concurring justices cited Hill Street Blues (which aired from describes the often murky “gray area” between two extremes.105 1981 to 1987) and repeated the advice of the show’s morning In Larsen v. State Employees Retirement System, a former state supreme roll-call police sergeant, who would end his daily brieing with, court judge alleged that state agencies had improperly calculated “Let’s be careful out there.”91 his retirement beneits.106 Citing the television series, the federal Courts frustrated with written or oral verbosity, name calling, district court determined that the action “lies somewhere in the or extraneous argument sometimes issue opinions that relay the twilight zone of Eleventh Amendment jurisprudence.”107 classic no-nonsense instruction from Los Angeles police Sgt. To illuminate procedural and substantive points, courts have Joe Friday (played by Jack Webb) on Dragnet, a drama series cited characters and themes from a host of other television that “redeined the image of law enforcement in the culture at dramas, including Star Trek,108 The Outer Limits,109 The Lone large”92 while it aired from 1951 to 1959: “Just the facts, m’am, Ranger,110 The Adventures of Superman,111 Branded,112 Dallas,113 The Six just the facts.”93 Million Dollar Man,114 The Bionic Woman,115 Hopalong Cassidy,116 Roy In Privitera v. City of Phelps, the appellate court airmed Rogers,117 and The Millionaire.118 dismissal of a slander claim against the defendant who had charged the plaintif with membership in the Maia.94 The Next issue: References to TV situation comedies and panel dispensed with lengthy explanation about potential harm reality shows. to the plaintif’s reputation because (as a concurring justice stated) “[t]hose unaware of the criminal ventures of Al Capone Endnotes have now been educated by the long-running TV series ‘The 1 Douglas E. Abrams, a University of Missouri law professor, has written Untouchables,’ based on his life.”95 or co-written six books. Four U.S. Supreme Court decisions have cited his law review articles. His latest book is effecTive legal wRiTiNg: a guide foR Judicial opinions have discussed one foreign television sTudeNTs aNd PRacTiTioNeRs (West Academic Publishing 2016). Portions of this show about lawyers. Rumpole of the Bailey aired on the British article were previously published in Douglas E. Abrams, References to Television Broadcasting Company (BBC), and on the Public Broadcasting Programming in Judicial Opinions and Lawyers’ Advocacy, 99 MaRqueTTe l. Rev. 993 System (PBS) in the United States. Deftly combining drama and (Summer 2016). 2 Bryan A. Garner, Interviews with Supreme Court Justices: Chief Justice John G. comedy, the series concerned a ictional London barrister who Roberts, Jr., 13 scRiBes j. legal wRiTiNg 5, 18 (2010).
@MoBarNews @MoBarNews 51 3 Wiley B. Rutledge, The Appellate Brief, 28 a.B.a. j. 251, 254–55 (1942). who ile pleadings and briefs that they often draft in prison libraries). 4 aNToNiN scalia & BRyaN a. gaRNeR, MakiNg youR case: The aRT of 50 Randall Samborn, Who’s Most Admired Lawyer?, 15 NaT’l l.j. 1, 24 (1993). PeRsuadiNg judges 112 (2008). 51 Fla. Bar v. Bailey, 803 So. 2d 683, 685 (Fla. 2001) (disbarment). 5 Id. at 111, 112. 52 Bailey v. Bd. of Bar Exam’rs, 90 A.3d 1137, 1169 (Me. 2014) (denying 6 Id. See also Justice Antonin Scalia: In His Own Words, BBc News, Feb. 14, 2016 admission to the Maine Bar). (quoting Justice Scalia: “The main business of a lawyer is to take the romance, 53 See doRoThy B. hughes, eRle sTaNley gaRdNeR: The case of The Real the mystery, the irony, the ambiguity out of everything he touches.”). PeRRy MasoN (1978); Perry Mason, The eNcycloPedia of aMeRicaN Radio: aN 7 Douglas E. Abrams, References to Baseball in Judicial Opinions and Written a–z guide To Radio fRoM jack BeNNy To howaRd sTeRN 221 (Ron Lackmann Advocacy, 72 j. Mo. BaR 268 (Sept.-Oct. 2016); Douglas E. Abrams, References to ed., 2000); Norman Rosenberg, Perry Mason, in PRiMe TiMe law: ficTioNal Football in Judicial Opinions and Written Advocacy, 73 j. Mo. BaR 34 (Jan.-Feb. 2017); TelevisioN as legal NaRRaTive 115 (Robert M. Jarvis & Paul R Joseph eds., Douglas E. Abrams, References to Spring’s Championship Sports in Judicial Opinions and 1998). See also, e.g., Stephanie Francis Ward, The 25 Greatest Legal TV Shows, A.B.A. Written Advocacy, 73 j. Mo. BaR 168 (May-June 2017). J., Aug. 2, 2009. 8 sTeveN d. sTaRk, glued To The seT: 60 TelevisioN aNd The eveNTs ThaT 54 Freeman v. Leapley, 519 N.W.2d 615, 619 (D.S.D. 1994), habeas corpus granted Made us who we aRe Today 2 (1997). sub nom. Freeman v. Class, 911 F. Supp. 402 (D.S.D. 1995), af’d, 95 F.3d 639 (8th 9 Id. Cir. 1996). 10 david MaRc & RoBeRT j. ThoMPsoN, PRiMe TiMe, PRiMe MoveRs 4 (1992). 55 People v. Castillo, 2007 WL 3151689 *1 (Cal. Ct. App. Oct. 30, 2007). 11 TheodoRe h. whiTe, The MakiNg of The PResideNT 1960, at 280 (1961). 56 See, e.g., United States v. Noah, 130 F.3d 490, 493 n.1 (1st Cir. 1997); Devine v. 12 williaM MaNchesTeR, The gloRy aNd The dReaM: a NaRRaTive hisToRy Wal-Mart Stores, Inc., 52 F. Supp. 2d 741, 744 & n.4 (S.D. Miss. 1999). of aMeRica 1932–1972, at 717 (1974). 57 2014 WL 4072024 (E.D. La. Aug. 18, 2014). 13 coBBeTT s. sTeiNBeRg, Tv facTs (1980). 58 Id. at *3 n.32. 14 Id. at 150. 59 Id. 15 David Halberstam, A Dynasty In the Making, in eveRyThiNg They had: 60 Noah, supra note 56, at 493 n.1. sPoRTs wRiTiNg fRoM david halBeRsTaM 42 (Glenn Stout ed. 2008). 61 Devine, supra note 56, at 744 n.4. 16 daNiel j. BooRsTiN, The aMeRicaNs: The deMocRaTic exPeRieNce 392-93 62 United States v. Hinkson, 585 F.3d 1247, 1254 (9th Cir. 2008) (en banc) (1973). (discussing “Perry Mason court-room drama”); State v. Norwood, 706 N.W.2d 683, 17 lawReNce M. fRiedMaN, aMeRicaN law iN The 20Th ceNTuRy 46 (2002). 692 (Wis. Ct. App. 2005) (discussing defendant’s “on-the-stand, virtually Perry 18 David Halberstam, A Dynasty In the Making, in eveRyThiNg They had, supra Mason-style confession”). note 15, at 42, 238. 63 Midwest Canvas Corp. v. Cantar/Polyair Corp., 2003 WL 22053582 *4 (N.D. Ill. 19 joN MeachaM, The soul of aMeRica: The BaTTle foR ouR BeTTeR Sept. 3, 2003). See also, e.g., In re Holman, 536 B.R. 458, 467 (Bankr. D. Or. 2015) aNgels 195 (2018). (“It is a truism (Perry Mason aside) that parties virtually never admit at trial that 20 Id. at 39 (quoting Eisenhower). they acted with an intent to deceive or defraud the opposing party.”). 21 Theodore H. White, supra note 11, at 279; see also, e.g., David Axelrod, My 64 Johnson v. Hix Wrecker Serv., Inc., 2012 WL 18596 *1 n.1 (S.D. Ind. Sept. Memories of ’68: Chaos in Black and White (cnn.com May 23, 2018) (the 1960s was 26, 2012) (“While the Court acknowledges Plaintif’s counsel’s desire to be a “the decade in which television became a pervasive presence in our lives”). modern day Perry Mason, the fact is that litigation under the Federal Rules of 22 William Manchester, supra note 12, at 714. Civil Procedure is not supposed to be merely a game, a joust, a contest; it is also 23 elaiNe TyleR May, hoMewaRd BouNd: aMeRicaN faMilies iN The cold a quest for truth and justice.”) (citation and internal quotation marks omitted); waR eRa 171–72 (1988). United States v. Schneider, 157 F. Supp. 2d 1044, 1069 (N.D. Iowa 2001) (“[T]his 24 Steven D. Stark, supra note 8, at 25. type of a ‘Perry Mason’ moment, replete with the elements of surprise and 25 RichaRd N. goodwiN, ReMeMBeRiNg aMeRica: a voice fRoM The sixTies prejudice, is precisely the type of matter that should be taken up with the court 61 (1988). outside the presence of the jury.”). 26 Newton N. Minow, Chairman, F.C.C., Address to National Association of 65 United States v. DeNoyer, 811 F.2d 436, 440 (8th Cir. 1987) (defendant’s ofer Broadcasters: Television and the Public Interest (May 9, 1961). of proof that someone else committed the crime “fall[s] far short of establishing 27 Id. a ‘Perry Mason defense’”); In re Neumann, 374 B.R. 688, 700 n.16 (Bankr. D. 28 TheodoRe h. whiTe, The MakiNg of The PResideNT 1968, at 196 (1969). Minn. 2007) (“The eforts in cross-examination to point the blame to another, 29 Id. See also, e.g., RoBeRT j. doNovaN & Ray scheReR, uNsileNT RevoluTioN: unidentiied person, somewhat in Perry Mason fashion, badly misired.”). TelevisioN News aNd aMeRicaN PuBlic life, 1948-1991, at 69 (1992) (“TV 66 See, e.g., United States v. Frost, 2018 WL 2448467 *7 (Army Ct. Crim. App. had the efect of drawing the country together” in the assassination’s immediate May 30, 2018) (“Perry Mason moment of trial”); United States v. Reyes, 2016 aftermath); id. at 270 (“Television transixed the American people for four days in WL 3999985 *5 (N.D. Ind. July 26, 2016) (“it isn’t likely that a Perry Mason November 1963. . . .”). moment would ensue”); In re Osejo, 447 B.R. 352, 354 (Bankr. S.D. Fla. 2011) 30 Id. at 14-15. (discussing the debtor’s failure to “break down on the stand a la Perry Mason 31 Theodore H. White, supra note 28, at 196. . . . and confess”); Cohns v. State, 2017 WL 219758 *2 (Ark. May 18, 2017) (“the 32 Id. at 197. defense had its Perry Mason moment”); Bearden v. State, 62 So. 3d 656, 660 (Fla. 33 Cobbet S. Steinberg, supra note 13, at 142. Dist. Ct. App. 2011) (“In seeking to recall [a witness], the defense was clearly not 34 Id. at 150. anticipating a dramatic, Perry Mason-style moment during which [the witness] 35 Id. would confess that it was he and not Bearden who” committed the crime). 36 a. fRaNk Reel, The NeTwoRks: how They sTole The show xii (1979). 67 State v. Weatherspoon, 514 N.W.2d 266, 281 (Minn. Ct. App. 1994). 37 Cobbet S. Steinberg, supra note 13, at 150; A. Frank Reel, id., at xi. 68 Arcaro v. Silva & Silva Enters. Corp., 77 Cal. App.4th 152, 158 (1999). See 38 David Halberstam, The Basket-Case State, in eveRyThiNg They had, supra also, e.g., Dennis v. Sec’y, Pa. Dep’t of Corrections, 834 F.3 263, 365 (3d Cir. 2016) (“a note 15, at 182 Introduction, id. at 249. dramatic courtroom reversal is more likely in a Perry Mason script than in reality”). 39 Jef Jacoby, Silence that Idiot Box!, BosToN gloBe, Sept. 27, 2009, at 9. 69 United States v. Leary, 2005 WL 1385142 (D. Del. Apr. 5, 2005). 40 Manfred Spitzer, Violence on TV: We Must Stop Watching, Org. for Econ. Co- 70 625 F.3d 410 (7th Cir. 2010). operation & Dev., Ctr. for Edu. Res. and Innovation (Jan. 2005). 71 Id. at 422. 41 See Nielson.com, Neilson Estimates 119.6 Million TV Homes In the US For the 72 Id. at 420 & n.2. 2017-18 TV Season (Aug. 25, 2018) (96.5%); Larry A. Viskochil, Foreword, in lloyd 73Mitchell v. Scully, 1983 U.S. Dist. LEXIS 14906, *12 (S.D.N.Y.). degRaNe, TuNed iN: TelevisioN iN aMeRicaN life (1991) (indoor plumbing). 74 Richie v. Mullin, 417 F.3d 1117, 1136 (10th Cir. 2005) (McConnell, J., 42 William Manchester, supra note 12, at 715. dissenting). See also, e.g., Jimenez v. City of Chicago, 830 F. Supp. 2d 432, 444 (N.D. 43 ella TayloR, PRiMe-TiMe faMilies: TelevisioN culTuRe iN PosTwaR Ill. 2011) (discussing Perry Mason: “real life does not work that way”). aMeRica 1 (1989). 75 Sallee v. Tenn. Bd. of Prof’l Resp., 469 S.W.3d 18, 41 (Tenn. 2015). 44 siR eRNesT goweRs, The coMPleTe PlaiN woRds, Prologue (1954). 76 Edmonson v. Leesville Concrete Co., 895 F.2d 218, 225-26 (5th Cir. 1990), rev’d on 45 Michael O’Rourke, A TV Series That Appeals to Everybody, saN aNToNio other grounds, 500 U.S. 614 (1991). See also, e.g., United States v. Fletcher, 62 M.J. 175, exPRess-News, Oct. 22, 2011, at 1E. 182 (C.A.A.F. Forces 2010) (“Although we might expect a character in a Perry 46 Joan Biskupic & Kathy Kiely, “Perry Mason” Helped “Mold” Sotomayor, usa Mason melodrama to point to a defendant and brand him a liar, such conduct Today, July 16, 2009, at 4A. is inconsistent with the duty of the prosecutor to ‘seek justice, not merely to 47 ThoMas leiTch, PeRRy MasoN 3 (2005). convict.’”) (citation omitted). 48 Id. at 3–4. 77 Michael Orey, Sex! Money! Glitz! In-House at L.A. Law, aM. lawyeR, Dec. 49 See, e.g., Rose v. Lundy, 455 U.S. 509, 529–30 (1982) (Blackmun, J., 1988, at 32, 34. See also Bible v. Schriro, 497 F. Supp. 991, 1023 (D. Ariz. 2007) (the concurring) (discussing “the Perry Masons of the prison populations,” inmates prosecutor’s closing arguments were “an attempt to characterize his personal 52 mobar.org style (in contrast to what the jurors might have seen on television shows like L.A. and zealous in his representation” of the defendant). See generally John Denvir, Law)”); Leonor Vivanco, Chicago Lawyers Find TV Guilty of Excess Drama, Red eye, Rumpole of the Bailey, in PRiMe TiMe law, supra note 53, at 145, 146. Oct. 20, 2008, at 6 (“When I was in high school . . . , it was all about ‘L.A. Law.’ 97 John Denvir, supra note 96, at 145–47. And it presented such a glamorous courtroom-centered vision of what being a 98 Harriscom Svenska, AB v. Harris Corp., 3 F.3d 576, 577 (2d Cir. 1993). lawyer was like that you couldn’t help but want to be one.”). 99 Standard Inv. Chartered, Inc. v. Fin. Ind. Reg. Auth., Inc., 684 F. Supp.2d 407, 409 78 Brigid Delaney, In Law, the Practice Bears Little Resemblance to The Practice, (S.D.N.Y. 2010); State v. Drakeford, 777 A.2d 202, 211 & n.3 (Conn. App. Ct. 2001) sydNey (ausTRalia) MoRNiNg heRald, Apr. 30, 2002, at 18. (Landau, J., concurring), af’d, 802 A.2d 844 (Conn. 2002). 79 John Brigham, L.A. Law, in PRiMe TiMe law, supra note 53, at 21, 21. 100 Horner v. Bagnell, 2015 WL 3522513 *9 n.8 (Conn. Super. Ct. May 11, 2015). 80 938 F.2d 1092 (10th Cir. 1991). 101 596 F.3d 387 389-90 (7th Cir. 2010). 81 Id. at 1093. 102 Id. at 393 & n.5; see also, e.g., United Bhd. of Carpenters and Joiners v. Bldg. & 82 Id. Constr. Trades Dep’t, 770 F.3d 834, 839 (9th Cir. 2014) (in a civil RICO action, 83 Id. discussing “no show job” portrayed in The Sopranos: No Show (HBO television 84 Id. at 1094–95. broadcast Sept. 22, 2002)); State v. Fitzpatrick, 880 N.W.2d 519 (Table), 2016 85 Id. at 1096. WL 146663 *2 (Iowa Ct. App. Jan. 13, 2016) (“The inale of the Sopranos was 86 Id. at 1096 n.4. ambiguous; the prosecutor’s statement here, not so much”); Ying Lu v. Lezel, 45 F. 87 317 S.W.3d 89, 94 (Mo. Ct. App. 2010). Supp.3d 86, 99 (D.D.C. May 27, 2014) (discussing “Sopranosesque igure”). 88 Idat.95 n.2; see also, e.g., Gray v. Gelb, 2015 WL 6870048 *1 (D. Mass. 103 Wozniak v. Lipof, 750 P.2d 971, 991 (Kan. 1988) (McFarland, J., dissenting). Nov. 6, 2017) (“[T]he trial judge’s goal was probably weeding out the so-called 104 Coble v. State, 330 S.W.3d 253, 273-74 & n.6 (Tex. Ct. Crim. App. 2010). See ‘CSI efect,’ the theory that because of the proliferation of crime investigation also, e.g., Mitchell v. Comm’r of Soc. Sec., 2016 WL 4507791 *6 (N.D. Ohio Aug. 29, television dramas, jurors hold prosecutors to an unrealistic standard of proof 2016) (discussing “the model of service being provided by a single Marcus Welby- and require that every crime be proven irrefutably by high-tech gadgetry and type physician acting alone”); Pater v. Comm’r of Soc. Sec., 2016 WL 3477220 scientiic analysis.”) (footnote omitted); Commonwealth v. Webster, 102 N.E.3d 381, *6 (N.D. Ohio June 27, 2016) (“The truth is that Marcus Welby has long since 389 n.6 (2018) (discussing the CSI efect); Jenny Wise, Providing the CSI Treatment: retired.”). Criminal Justice Practitioners and the “CSI Efect,” 21 cuRReNT issues iN cRiM. jusT. 105 gaRy geRaNi & Paul h. schulMaN, faNTasTic TelevisioN 35, 38 (1977); 383, 383–84 (2010); The csi effecT: TelevisioN, cRiMe, aNd goveRNaNce 141– Steven D. Stark, supra note 8, at 85–86 (The Twilight Zone “somehow permeated 42 (Michele Byers & Val Marie Johnson eds., 2009); Simon A. Cole & Rachel the consciousness of the entire culture”). Dioso-Villa, Investigating the CSI Efect’ Efect: Media and Litigation Crisis in Criminal 106 553 F. Supp.2d 403, 409 (M.D. Pa. 2008). Law, 61 sTaN. l. Rev. 1335, 1338–39 (2009). 107 Id. at 413; see also Lone Star Security & Video, Inc. v. City of Los Angeles, 827 89 United States v. McCarley, 70 Fed. Appx. 854, 858 (6th Cir. 2003). See also, e.g., F.3d 1192, 1202 (Owens, J., concurring) (“That is a dimension we should avoid,” Dawn Keetley, Law & Order, in PRiMe TiMe law, supra note 53, at 33, 38; Richard citing Twilight Zone episode); KeyCite Yellow Flag - Negative Treatment Walsh v. Clark Sterne, N.Y.P.D. Blue, id. at 87, 94. Comey, 118 F. Supp. 3d 22, 26 (D.D.C. July 13, 2015) (discussing “cases involving 90 23 P.3d 27 (Wyo. 2001). scenarios more appropriate to Rod Serling’s ‘The Twilight Zone’”). 91 Clingman, 23 P.3d at 32 (Golden, J., concurring). See also Dean v. Harris Cty., 108 McCarthan v. Dir. of Goodwill Indus-Suncoast, Inc., 851 F.3d 1076, 1158 & 2013 WL 5214351 *2 n.5 (S.D. Tex. Sept. 17, 2013) (“Miranda prescribes . . . four n. 31 (11th Cir. 2017) (Rosenbaum, J., dissenting) (discussing “the Star Trek warnings familiar to every student of criminal procedure and police procedural universe,” with lengthy footnoted explanation); U.S. v. Norman, 87 F. Supp.3d 737, dramas from Hill Street Blues to Law & Order.”). See generally Susan Beth Farmer, 745 n.5 (E.D. Pa. 2015); G.G. Marck & Assocs., Inc. v. U.S., 2015 WL 3757040 *10 Hill Street Blues, in PRiMe TiMe law, supra note 53, at 17, 17. n.18 (U.S. Ct. Int’l Trade, June 17, 2015) (“Remarkably, each expert chose exactly 92 Steven D. Stark, supra note 8, at 31–32 the same words to express his opinion. . . . No doubt, a human example of 93 Counts v. Bryan, 182 S.W.3d 288, 293 (Tenn. Ct. App. 2005); see also, e.g., Vulcan mind meld,” citing 1966 Star Trek episode); Nittany Outdoor Advert., LLC v. Spano v. Boeing Co., 2015 WL 11144498 *1 (S.D. Ill. Aug. 11, 2015) (order) (“To College Twp., 2014 WL 12740630 *2 (M.D. Pa. July 22, 2014) (discussing plaintif’s paraphrase the great American philosopher Jack Webb, in his role in Dragnet, eligibility for attorneys’ fees; “Boldly going where no party in this case had gone ‘just the facts, ma’am.’ The parties are cautioned to stick to the facts.”); Abernathy before [is] always a dangerous enterprise”); Ryan v. Wright, 2018 WL 2246882 v. Comm’r of Corr., 2015 WL 4430375 *7 (Conn. Super. Ct. June 16, 2015); Aquifer *4 (Iowa Ct. App. May 16, 2018) (discussing “a Star Trek-like teleportation Gardens in Urban Areas v. Fed. Highway Adm., 779 F. Supp.2d 542, 550 n.33 (W.D. device”): In re Marriage of Belnap, 2007 WL 1632365 *4 (Cal. Ct. App. June 7, Tex. 2011) (citing j. Michael hayde, My NaMe’s fRiday: The uNauThoRized 2007) (rejecting argument that all Calif. statutes are void under the Northwest BuT TRue sToRy of dRagNeT aNd The filMs of jack weBB 73 (2001)). Ordinance of 1787; “With apologies to the former television series Star Trek, we 94 435 N.Y.S.2d 402, 406–07 (App. Div. 1981). decline ‘to boldly go where no [rational analysis] has gone before.’”) (citing Star 95 Id. at 407 (Cardamone, J., concurring). Trek (NBC television broadcast 1966–1969) opening monologue). 96 Jackson v. United States, 638 F. Supp. 2d 514, 538 (W.D.N.C. 2009) (defense 109 Kennedy v. Kennedy, 41 N.Y.S.3d 449 (Table), 2016 WL 3677229 *4 n.4 (N.Y. counsel “exude[d] the persona of ‘Rumpole of the Bailey’,” and was “dogged Sup. Ct. June 9, 2016).
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@MoBarNews @MoBarNews 53 110 Gaiman v. McFarlane, 360 F.3d 644, 661–62 (7th Cir. 2004) (upholding 113 Maximus, Inc. v. Lockheed Inf. Mgt. Sys. Co., 47 Va. Cir. 193 (Richmond Va. validity of copyright on a work whose character had a distinctive appearance City Cir. Ct. 1998), af’d in part and rev’d in part on other grounds, 524 S.E.2d 420 (Va. but no name; “the Lone Ranger doesn’t have a proper name either (at least not 2000) (discussing “the type of concealment and sharp practices that would make one known to most of his audience – actually he does have a proper name, John television’s J.R. Ewing of ‘Dallas’ fame proud”); see generally Steven D. Stark, supra Reid), so that can’t be critical”); Aquifer Gardens in Urban Areas v. Fed. Highway Adm., note 8, at 221 (Dallas “not only relected its times but also helped deine them”). 779 F. Supp. 2d 542, 546 n.13 (W.D. Tex. 2011) (“The Lone Ranger is a ictional 114 Llanes v. Frontera, 2008 WL 623796 *4 (W.D. Mich. Mar. 4, 2008) masked Texas Ranger who . . . has become an enduring icon of American (dismissing prisoner’s civil rights claim; “[p]laintif seeks a ‘bionic’ leg. . . . [I]n culture.”); E.M.B. v. A.M.B., 55 N.Y.S.3d 692 (Table), 2016 WL 1136206 *1 the 1970s ‘bionic’ limbs and body parts were addressed in the ictional television n.2 (N.Y. Sup. Ct. Mar. 5, 2017) (divorce action; “The legal status of a ‘co- series ‘The Six Million Dollar Man’ and ‘The Bionic Woman.’ . . . Given the respondent’ requires this court to voyage back to what were called in The Lone State of Michigan’s current budget constraints, such a surgery would not be Ranger television show, ‘the thrilling days of yesteryear,’ when adultery was the iscally responsible or feasible.”). most common form of divorce litigation.”). 115 Id. 111 Gardner v. Comm’r of Internal Rev., 845 F.3d 971, 976 (9th Cir. 2017) 116 Lewis v. Woodford, 2007 WL 196635 *25 (E.D. Cal. Jan. 23, 2007) (“the (rejecting appellants’ arguments of separate identities; “This seems a little like once-upon-a-time ‘quick-draw’ practicing with a buck knife reasonably says arguing that Clark Kent is not Superman. Certainly Superman displays abilities nothing about one’s state of mind years later. If it did, every child who ever that Clark Kent denies having, but they are one and the same.”); In re Rahndee played quick-draw, a la Hopalong Cassidy or Roy Rodgers [sic], with a toy Indus. Servs., 2015 WL 6160288 *13 (Bankr. N.D. Okla. Sept. 18, 2015) (“when cap gun would do so at his own later peril in demonstrating an intent to rob”); Superman steps out of the phone booth, Clark Kent is still alive”); Williams Randle v. Sanders, 2016 WL 7321298 *1 & n. 1 (Tex. Ct. App. Dec. 14, 2016) (“As v. State, 79 A.3d 931, 941 n.6 (Md. 2013) (the defendant “does not resemble ictional cowboy hero Hopalong Cassidy suggests, agreements made the ‘cowboy even vaguely Lex Luthor, the human criminal mastermind and nemesis of way’ are held to a higher standard.”). Superman”). 117 Lewis, supra note 116. 112 State v. Schad, 206 P.3d 22, 34–35 (Kan. Ct. App. 2009) (reversing sentence 118 Val-Pak of Cent. Conn. N., Inc. v. Comm’r Rev. Servs., 670 A.2d 343 (Conn. that required the defendant, as a condition of his probation, to post signs Super. Ct. 1994), af’d, 669 A.2d 1211 (Conn. 1996) (“(The Millionaire, it might be informing the public that he was a sex ofender; the condition was “reminiscent recalled, was a television program . . . in which a wealthy philanthropist, John of Branded, a television Western series [about] . . . a United States Army captain Beresford Tipton, would each week give one million dollars to a total stranger who had been court-martialed for cowardice and forced to leave the Army”). and watch to see what was done with the money.)”).
Supreme Court Rule Changes The Supreme Court of Missouri, in an order dated December Continued from page 30 18, 2018, repealed the heading title of subdivision 6.01, entitled “Annual Enrollment Fee and Statement – Exemptions – Penalties – Pro Hac Vice Fee,” of Rule 6, entitled “Fees to Practice Law,” Court); subdivision 33.10 (Misdemeanors or Felonies – and adopted a new title of subdivision 6.01, entitled “Annual Transmittal of Record by Clerk of the Releasing Court); and Enrollment Fee and Statement – Exemptions – Penalties – Pro subdivision 33.11 (Misdemeanors or Felonies – Bonds – Where Hac Vice Fee – Pro Bono Waiver.” Filed – Certiication by Sherif or Peace Oicer – Cash Bonds) In the same order, the Court adopted a new subdivision of Rule 33, entitled “Misdemeanors or Felonies – Release 6.01(o), entitled “Pro Bono Waiver of Annual Enrollment Fee,” of Pending Further Proceedings,” and in lieu thereof adopted a subdivision 6.01, entitled Annual Enrollment Fee and Statement new subdivision 33.01 (Misdemeanors or Felonies – Right to – Exemptions – Penalties – Pro HacVice Fee – Pro Bono Waiver,” Release – Conditions); a new heading title and new subdivision of Rule 6, entitled “Fees to Practice Law.” 33.02 (Misdemeanors or Felonies – Warrant for Arrest – The Court also adopted a new Pilot Project for Pro Bono Waiver Conditions to be Stated on Warrant); a new subdivision 33.04 Under Adopted Rule 6.01(o). (Misdemeanors or Felonies – Oicer Authorized to Accept The efective date of the Adopted Rule is January 1, 2020. Conditions of Release); a new heading title and new subdivision The efective date of the Pilot Project is January 1, 2019. 33.05 (Misdemeanors or Felonies – Release Hearing); a new The complete text of the order may be read in its entirety at subdivision 33.06 (Misdemeanors or Felonies – Modiication of www.courts.mo.gov. Conditions of Release; a new subdivision 33.07 (Misdemeanors or Felonies – Rules of Evidence Inapplicable); a new heading In an order dated December 18, 2018, the Supreme Court title and new subdivision 33.08 (Misdemeanors or Felonies – of Missouri repealed subdivision 5.21(e), entitled “Interim Rearrest of Defendant); a new subdivision 33.09 (Misdemeanors Suspension and Final Discipline for Criminal Activities,” of Rule or Felonies – Failure of Court to Set Conditions or Setting of 5, entitled “Complaints and Proceedings Thereon,” and adopted Inadequate or Excessive Conditions for Release – Application a new subdivision 5.21(e), entitled “Interim Suspension and Final to Higher Court); a new subdivision 33.10 (Misdemeanors or Discipline for Criminal Activities.” Felonies – Transmittal of Record by Clerk of the Releasing This order becomes efective January 1, 2019. Court); and a new subdivision 33.11 (Misdemeanors or Felonies The complete text of the order may be read in its entirety at – Bonds – Where Filed – Certiication by Sherif or Peace Oicer www.courts.mo.gov. – Cash Bonds). This order becomes efective July 1, 2019. The complete text of the order may be read in its entirety at CORRECTION – www.courts.mo.gov. In the November/December 2018 issue of the Journal of The Missouri Bar, the efective date of the order of October 15, 2018 concerning Rules 56 and 58 is July 1, 2019. It was erroneously listed at January 1, 2019.
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