St. Louis Daily Record & St. Louis Countian: Missouri Court of Appeals Summaries of Opinions: Ju

Civil Law

Labor and employment;

independent contractor status

National Heritage Enterprises Inc., appeals from the decision of the Labor and Industrial Relations Commission that the payments made to its employee, Lynda Ridley, for performing certain after-hours services for the appellant were considered wages subject to state unemployment taxes, pursuant to the Missouri Employment Security Law, sections 288.010-.390.

On appeal, the appellant claims that the Commission erred in concluding that the payments the appellant made to Ridley for performing after-hours services were wages subject to state unemployment taxes, as defined by section 288.036, because its supporting finding, that the after-hours services performed by Ridley constituted employment, as defined in section 288.034, rather than services performed by an independent contractor, was not supported by competent and substantial evidence. Specifically, it claims that the twenty-factor test, used for distinguishing between an employee and an independent contractor, when applied to the work performed by Ridley for the appellant after hours: housecleaning and limousine services on evenings and weekends, clearly weighed in favor of a finding that Ridley was an independent contractor.

REVERSED.

Division Four holds: At least twelve and arguably thirteen of the twenty factors clearly favor independent contractor status for Ridley's after-hours work for the appellant, while only four favor employer/employee status. The remaining three factors are either neutral or not applicable. Thus, there are three times as many factors favoring independent contractor status as there are factors favoring employer/employee status. While we are mindful that this court cannot rest its decision merely on a numerical count of factors, we nevertheless determine that the great weight of the evidence in the whole record favors the conclusion that Ridley was acting as an independent contractor, rather than an employee, in her after-hours work for the appellant. This is because the great weight of the evidence establishes that, while the appellant had control over the result of Ridley's work, it did not have control over the manner in which she performed that work.

We note that the Commission's decision relied primarily on a finding that Ridley's after-hours services were not any different in nature than her full-time duties as a paralegal. This finding is against the overw helming weight of the evidence. Consequently, we need not address the question of how our analysis might change if, in fact, Ridley was doing the same work in both her full-time employment and her after-hours services.

WD64201 National Heritage Enterprises Inc., Appellant, vs. Division of Employment Security, Respondent

Appeal From: Labor and Industrial Relations Commission

Counsel for Appellant: Jean Maylack and Richard Hauser

Counsel for Respondent: Marilyn Green and Cynthia Quetsch

Opinion Author: Edwin H. Smith, Chief Judge

Opinion Vote: REVERSED. Howard and Holliger, JJ., concur.

Civil Law

Procedure; false arrest

Mr. Tracey Blue appeals a summary judgment in favor of Officer B.L. Sweiger and a judgment notwithstanding the verdict for Harrah's Casino on the punitive damages award. Harrah's appeals the trial court's denial of a judgment notwithstanding the verdict on liability to Mr. Blue for false arrest. We affirm in part and reverse and remand in part.

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

Division III holds: Mr. Blue was arrested at Harrah's Casino for theft of roulette chips. He brought suit for false arrest against Harrah's and against Officer Sweiger.

Mr. Blue presented a submissible case for liability, so Harrah's motion for judgment notwithstanding the verdict on liability was properly denied. The trial court correctly denied Mr. Blue's request for a new trial because of an inconsistent verdict and Mr. Blue's motion to amend the judgment and award him nominal damages to support the punitive damages award because he did not request a resolution of these problems before the jury was dismissed. So there was no award of damages to support the punitive damages. Further, Mr. Blue was not entitled to punitive damages because he did not show by clear and convincing evidence that Harrah's had an evil motive or acted with reckless indifference to his rights.

The trial court, however, erroneously granted Officer Sweiger's motion for summary judgment. The jury should decide whether he had probable cause to arrest and whether he lost his official immunity by acting in bad faith or with malice.

WD63948, WD63975 Tracey Blue, Appellant-Respondent, vs. Harrah's North Kansas City, LLC; Respondent-Appellant, B.L. Sweiger, Respondent.

Appeal From: Circuit Court of Clay County, Hon. James E. Welsh, Jr.

Counsel for Appellant: George S. Miller

Counsel for Respondent: Joseph M. Fridkin and Theodore A. Bruce

Opinion Author: Thomas H. Newton, Judge

Opinion Vote: AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. Lowenstein and Breckenridge, JJ., concur.

Civil Law

Procedure; jurisdiction

Missouri Public Service Commission (PSC) and the Director of the Manufactured Housing and Modular Units Program of the Public Service Commission (Director) appeal the grant of a writ of prohibition by the Circuit Court of Cole County barring PSC and the Director from taking action involving a complaint filed by the Director seeking direction from the Commission to require its counsel to proceed with an action against A&G Commercial Trucking, Inc. (A&G), an unregistered dealer of manufactured homes. PSC and the Director raise several points of error, including a claim that the circuit court exceeded its jurisdiction in granting the writ of prohibition.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Division holds: (1) The trial court's jurisdiction over the PSC is set by Section 368.540, RSMo. That statute places express limitations on the courts' ability to enjoin, restrain or interfere with the commission in the performance of its official duties. The PSC statutes provide a specific procedure for review of PSC actions, and that procedure does not include the entry of writs of prohibition or mandamus directed to the PSC.

(2) The Missouri Constitution does not grant trial courts superintending jurisdiction over inferior tribunals. While Article V, Section 4, previously granted trial courts such jurisdiction, that section was amended in 1976, withdrawing that jurisdiction from the trial courts. Thus, one must look to statute to determine whether a trial court may exercise superintending jurisdiction over an administrative agency by means of writs of prohibition and mandamus.

WD64472 State of Missouri ex rel. A&G Commercial Trucking Inc., Respondent, vs. Director of the Manufactured Housing and Modular Units Program of the Public Service Commission, and the Missouri Public Service Commission, Appellants.

Appeal From: Circuit Court of Cole County, Hon. Richard G. Callahan

Counsel for Appellant: Keith Krueger

Counsel for Respondent: Tom Harrison and Thomas G. Pirmantgen

Opinion Author: Ronald R. Holliger, Judge

Opinion Vote: REVERSED AND REMANDED WITH INSTRUCTIONS. Smart, Jr., P.J., and White Hardwick, J., concur.

Criminal Law

Murder; procedure

Zacheriah Tripp appeals his convictions of first degree murder, kidnapping, and forcible rape. He raises three points of error on appeal. He first contends that the trial court erred by denying his pre-trial motion to suppress DNA testimony or, alternatively, to continue the trial due to the State's failure to timely disclose data and bench notes concerning the State's DNA testing. Second, Tripp argues that the trial court plainly erred in permitting testimony regarding the contents of his laptop, claiming that the testimony was legally irrelevant, with its prejudicial effect outweighing any probative value it might have had. Lastly, Tripp contends that the trial court committed plain error by permitting a witness to testify concerning a conversation overheard between Tripp and his brother on the night of the victim's disappearance in which the brother stated that Tripp's mother had been looking for him for two and a half hours.

AFFIRMED.

Division holds: (1) Tripp failed to properly preserve the issue of whether the trial court erred in refusing to declare a mistrial or continue the case to permit him to recall the State's DNA expert, based upon tardy disclosure by the State of the test data supporting the expert's testimony, because Tripp failed to raise any objection at the time the expert testified or before the expert was released from her subpoena. Even if the trial court's failure to declare a mistrial or continue the case constituted plain error, Tripp fails to establish that a manifest injustice or miscarriage of justice occurred because he presents no specific showing of what additional questioning of the State's expert would have been conducted.

(2) There was no showing that the admission of testimony regarding the contents of the hard drive in his laptop computer resulted in a miscarriage of justice or a manifest injustice, as there was no indication in the record that this testimony had a decisive effect on the jury's verdict. (3) The trial court did not plainly err in allowing a witness to testify regarding the overheard conversation between Tripp and his brother. The statements that were admitted were not being offered for the truth of the matter asserted, and was therefore not hearsay. The trial court gave an appropriate limiting instruction to the jury regarding how that testimony could be considered, and there is no indication that the jury disobeyed that instruction. Moreover, any claim of prejudice would be tenuous as the conversation supported the theories of the case presented by both the State and the defense.

WD63005 State of Missouri, Respondent vs. Zacheriah S. Tripp, Appellant.

Appeal From: Circuit Court of Buchanan County, Hon. Randall R. Jackson

Counsel for Appellant: Ellen H. Flottman

Counsel for Respondent: Deborah Daniels and Shaun Mackelprang

Opinion Author: Ronald R. Holliger, Judge

Opinion Vote: AFFIRMED. Smith, C.J., and Howard, J., concur.