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Rex P. Fennessey, Esquire

Prevailing market rate of $175 per hour, standing alone, is not a "special factor" under Section 536.087, RSMo permitting award of fees in excess of $75 per hour. Vance v. Griggs, et al., No. 71664 (Mo. App. W.D., November 9, 2010), Mitchell, J.

Dewayne Sprenger ("Sprenger") successfully challenged his dismissal from the Missouri Division of Alcohol and Tobacco Control with the aid of an attorney.  After prevailing, Sprenger requested reimbursement for his attorney's fees under Section 536.087, RSMo, which permits a prevailing party in a contested case to recover attorney's fees and costs. At the hearing to establish his fees and costs, Sprenger introduced testimony of other attorneys in the area to establish that the prevailing market rate was $175 per hour. The trial court awarded Sprenger fees at the rate of $75 per hour, the statute's rate, because it determined that Sprenger had failed to establish a "special factor" under the statute; and therefore did not qualify for reimbursement at a higher rate. Sprenger appealed.

Held: Affirmed in part, reversed in part and remanded for further proceedings.
The Western District looked first to the plain language of Section 536.087, RSMo, which states that "attorney's fees shall not be awarded in excess of seventy-five dollars per hour unless the court determines that a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee[.]"  Sprenger argued that the lack of attorneys willing to take a case for $75 an hour was a "special factor" under the statute. Looking to the United States Supreme Court's construction of the statute's federal counterpart, the Western District reasoned that Sprenger's argument was untenable because a lack of a qualified attorney in the area to take the case for $75 would functionally "eviscerate the statutory cap," since "all proceedings would present the `special factor'[.]" The Western District suggested that the "special factor" contemplated by the statute was the need for expertise in the particular area of law used in the proceeding. Because Sprenger did not establish that there was a "lack of attorneys in the area that were capable of representing him," in the administrative challenge of his dismissal, no special factor existed; thus, reimbursement was proper only at the statutory rate.

Breeder deer are "domestic" animals for purposes of Section 273.020, RSMo liability for killing or maiming. Oak Creek Whitetail Ranch, L.L.C. v. Lange, et al., No. 94712 (Mo. App. E.D., November 23, 2010) Richter, C.J.

Oak Creek Whitetail Ranch, L.L.C. ("Oak Creek"), a deer breeding and hunting business, raised deer "breeder deer," for use in its operations. These "breeder deer" were all penned, hand-fed, and lacked the defensive abilities of wild deer. In December 2006, three dogs owned by Glendon Lange and others ("Defendants") broke through the pen holding the breeder deer and killed twenty-one of them. Oak Creek brought an action against Defendants under Section 273.020, RSMo, which states that creates liability of the owner or keeper of a dog that kills or maims a "domestic animal."  Defendants moved for summary judgment, arguing that Oak Creek's breeder deer were not "domestic animals." The trial court granted the motion on the grounds that breeder deer are not "traditional domestic farm animals", and Oak Creek appealed.

Held: Reversed and remanded. Finding no statutory definition of "domestic animal" the Eastern District looked to the dictionary meaning of the term, which describes a domestic animal as one "living in or near the habitation of man . tame," and "domesticated by man to live and breed in a tame condition."  The appellate court found Oak Creek's breeder deer to be domestic because they lived and bred in a tame condition.

Section 287.610, RSMo, permits statutorily empowered administrative law judges of the Division of Workers Compensation to be dismissed for budgetary reasons without cause. Herschel, et al. v. Nixon, et al., No. 71518 (Mo. App. W.D., November 23, 2010), Pfieffer, P.J.

The Director of the Division of Workers' Compensation of the Department of Labor and Industrial Relations ("Division") informed the Division's four most junior Administrative Law Judges, including Henry Herschel, Matthew Murphy and John Tackes (collectively "ALJs"), that their positions would be eliminated at the end of the 2009 Fiscal Year because of a decrease in funding to the Division. The decision of which individuals would be dismissed was based exclusively on time served as an ALJ within the Division; and was not based on past performance as an ALJ. Prior to the close of the fiscal year, the ALJs filed suit seeking to enjoin the Division from eliminating their positions on the ground that Section 267.610, RSMo permitted removal of ALJs only following a performance audit by the Division's ALJ Review Committee resulting in two votes of no confidence. After a bench trial, the circuit court permanently enjoined the Division from eliminating the positions of the ALJs on the ground that the performance audit procedure was the sole means of removing ALJs. The Division appealed.

Held:  Reversed.
The Western District first determined, in a footnote, that it had jurisdiction to hear the appeal because the position of Division ALJ was not a "state office" within the meaning of Article V, Section 3, of the Missouri Constitution. The appellate court distilled two issues for review (1) does Section 267.610, RSMo, provide ALJs be removed only through the performance audit process, and, (2) if not, did the Director have the authority to remove the ALJs under this case's facts.

To answer the first question, the court reviewed past versions of Section 267.610, RSMo.  The court noted that previous versions of the statute made explicit that the performance audit process was the only means of removing ALJs. The court found that the legislature's removal of this language from the current version of the statute, coupled with added language that "[a]ppropriations shall be based upon necessity, measured by the requirements and needs of each division office[,]" evinced a legislative intent to permit ALJ positions to also be eliminated for budgetary reasons. Further, previous versions of Section 267.610, RSMo, referencing "appropriations for any additional appointment" were replaced by a provision referencing "[a]ppropriations.based upon necessity[.]"  The court found that this amendment provided the General Assembly authority to "adjust appropriations for ALJs upwards or downwards based on necessity[.]"  The court also noted that this interpretation was consistent with the Missouri Constitution's requirement that appropriations be limited to two years and that previous General Assemblies could not "tie the hands" of subsequent legislatures.

As for the second question, the court found that, although the legislature's appropriations for FY2010 did not explicitly identify ALJ positions for elimination, the executive branch's budget recommendation listed the elimination of five ALJ positions as a "core adjustment" to the Division's budget; and the amount the Division's budget was reduced was approximately the same amount as the collective annual salary for five ALJs. Given this context, the court found that the Division's decision to eliminate the ALJs' positions was implicitly approved by the General Assembly.

  The Western District's opinion takes pains to limit its holding to the specific questions and circumstances presented by the appeal.

Judicial proceedings privilege protects pertinent statements made in the course of judicial proceedings. Impertinent statements made in judicial proceedings are afforded qualified immunity if not made maliciously. Pertinence may require reference to context in which statement is made. Action for defamation not subject to motion to dismiss when pertinence cannot be determined from the face of the pleading. Riley v. Riley, et al., No. 72317 (Mo. App. W.D., April 26, 2011), Newton, J.

Sless Riley ("Sless") and Dewaine Riley ("Dewaine") with his mother Virginia Riley ("Virginia") filed cross-petitions for ex parte orders of protection. During the evidentiary hearings on these petitions, Dewaine and Virginia variously testified, inter alia, that Sless was a prostitute, had committed adultery, and had her children removed by the Missouri Department of Social Services. Thereafter, Sless filed a petition for damages alleging that Dewaine and Virginia had invaded her privacy, harassed her, and defamed her with these statements, setting forth the statements made and alleging a damage to her reputation. Dewaine and Virginia moved to dismiss the petition on the grounds that their in-court testimony was absolutely privileged under the judicial proceedings privilege and that her damages were insufficiently pled. The court granted the motion and Sless appealed.

Held:  Reversed and remanded.
The Western District first held the Petition's allegation that Sless had her peace disturbed, was humiliated, had her status and reputation in her community diminished sufficiently pleaded the "damage to reputation" element of a defamation claim to withstand a motion to dismiss. Next, the court recited that "defamatory statements made during judicial proceedings pertinent to the proceedings are absolutely privileged, even if made maliciously." However, it noted that statements not pertinent to the proceedings enjoy only a qualified privilege, and are actionable if made maliciously or a "reasonable belief as to their pertinence." A statement is pertinent is "responsive to some fact apparently bearing on the issue to which it is directed." The court found that the determination of pertinence required a reference to the statement's context. The court found that because the petition did not provide the context in which the statements were made, pertinence could not be determined from the face of the petition; thus, dismissal was inappropriate.

Municipalities have sovereign immunity for governmental functions; which includes the termination of employees. Municipalities enjoy such immunity even when termination of employees may be contrary to public policy. Motions to delay ruling on summary judgment under Rule 74.04 must be accompanied by an affidavit and description of facts to be discovered, and the movant cannot delay engaging in such discovery. Failure to allege an employer-employee relationship between a former employee and individual defendants makes wrongful termination/discharge claim subject to a motion to dismiss. Brooks v. City of Sugar Creek, et al., No. 71855 (Mo. App. W.D., March 22, 2011) Witt, J.

City of Sugar Creek police officer Jim Brooks stopped a vehicle and arrested its operator on suspicion of driving while intoxicated. On arrival to the city's police station, Brooks was told by his superior Sergeant Jonathan Fields that the individual arrested was the owner of a well-known business in Sugar Creek. Fields instructed Brooks to shred all records related to the detention, field testing, and arrest. Brooks complied. The next day, Brooks was summoned by the City of Sugar Creek's Chief of Police, Herbert Soule and was terminated.

Brooks filed suit for wrongful discharge and wrongful termination against the City, Soule and Fields. The City moved for summary judgment based on sovereign immunity; Soule and Fields moved to dismiss Brooks' petition on the basis that they were not Brooks' employer. The trial court sustained both motions and Brooks appealed.

Held: Affirmed.
Brooks' first point on appeal argued that the City was not entitled to summary judgment because his termination was against public policy. Actions for wrongful discharge and termination are common law causes of action. Municipalities enjoy sovereign immunity for governmental functions. The court cited precedent that dismissal of employees is a governmental function; even when such dismissal is the result of purposeful misconduct. The court affirmed the City's dismissal on the grounds of sovereign immunity.

A municipality waives sovereign immunity to the extent that it has purchased liability insurance. In his second point, Brooks argued that he was not permitted sufficient time to conduct discovery on the extent of the City's insurance coverage. The court rejected this argument because (1) the City's insurance agreement did not intend a waiver of sovereign immunity, (2) Brooks had failed to submit a motion for continuance in accord with Rule 74.04(f) supported with an affidavit and a description of the evidence to be discovered, and (3) Brooks had conducted discovery during the months the motion for summary judgment was pending. 

The Western District rejected Brooks' final point - that dismissal of Fields and Soule was improper - because Brooks had not alleged that an employer-employee relationship existed between himself and these defendants.

  The Western District's opinion requested the Supreme Court and the General Assembly to reconsider modifying the common law sovereign immunity for municipalities when the termination is in contravention of public policy. The Supreme Court has denied transfer.

The Missouri Bar Courts Bulletin, 11-Aug

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