IN THE MISSOURI COURT OF APPEALS EASTERN DISTRICT APPEAL NO. ED101748 JOHN CHASNOFF, Plaintiff/Respondent v. ST. LOUIS BOARD OF POLICE COMMISSIONERS, et al., Defendants/Appellants. WENDELL ISHMON, et al., Plaintiffs/Appellants v. ST. LOUIS BOARD OF POLICE COMMISSIONERS, et al., And JOHN CHASNOFF, Intervenor/Respondent. APPEAL FROM THE TWENTY-SECOND CIRCUIT, DIVISION 18, HON. ROBERT H. DIERKER, JR. CAUSE NOS. 0722-CC07278; 1122-CC01598 REPLY BRIEF OF APPELLANTS ST. LOUIS BOARD OF POLICE COMMISSIONERS OFFICE OF THE CITY COUNSELOR Mark Lawson #33337 Associate City Counselor 1915 Olive St., Room 773 St. Louis, MO 63103 Phone: (314) 444-5609; Fax: (314) 444-5611 mlawson@slmpd.org Attorney for Appellants St. Louis Board of Police Commissioners, et al.
TABLE OF CONTENTS TABLE OF CONTENTS... TABLE OF AUTHORITIES.. ARGUMENT.. CONCLUSION... CERTIFICATE OF COMPLIANCE.. CERTIFICATE OF SERVICE... 1 2 3 10 11 11 1
TABLE OF AUTHORITIES Cases Auto-Owners Ins. Co. v. Ennulat, 231 S.W.3d 297 (Mo. App. 2007)... Chasnoff v. Board of Police Commissioners, 343 S.W.3d 147 (Mo. App. 2011)... Spradlin v. City of Fulton, 982 S.W.2d 255 (Mo. banc 1998)... State Farm Mut. Auto. Ins. Co. v. Esswein, 43 S.W.3d 833 (Mo. App. 2000)... Statutes 610.021, RSMo... 610.100, RSMo... Page 7 3, 4, 5, 8 5 9 6, 7 3 2
ARGUMENT I. THE TRIAL COURT ERRED IN AWARDING ATTORNEY FEES SUA SPONTE IN FAVOR OF CHASNOFF FOR THE ENTIRETY OF THE CONSOLIDATED CHASNOFF AND ISHMON CASES AGAINST THE BOARD UNDER THE SUNSHINE LAW ATTORNEY FEE PROVISION, 610.100.6, RSMO. OR, ALTERNATIVELY, THE COLLATERAL LITIGATION EXCEPTION TO THE AMERICAN RULE BECAUSE (A) CHASNOFF NEVER MOVED FOR OR SPECIALLY PLED ATTORNEY FEES, OR, IN THE ALTERNATIVE, (B) THERE WAS NO AUTHORITY TO AWARD ATTORNEY FEES UNDER EITHER THE SUNSHINE LAW ATTORNEY FEE PROVISION OR THE COLLATERAL LITIGATION EXCEPTION. Responding to Point V of Respondent s Brief Apparently, based on the Argument in Chasnoff s Brief responding to the Board s Brief, Respondent s Brief, at 39, the only way the Board could have avoided an award of attorney s fees against it would have been, after this Court s decision in Chasnoff v. Board of Police Commissioners, 334 S.W.3d 147 (Mo. App. 2011) 1, for the Board to essentially defy this Court s recognition that the Police Officers whose names appeared in 1 Chasnoff refers to the 2011 decision as Chasnoff II, apparently to separate it from the trial court s decision, while in the Board s appellate brief, it was referred to as Chasnoff I because it was the first reported decision. The Board will attempt to clarify in this Brief which decision it is referencing without use of the previous designations. 3
the records at issue might have a cause of action to keep them from being made public, defy the stay order previously entered by the trial court which this Court in Chasnoff I kept in place, and turn over the Internal Affairs investigation records to Chasnoff. Because if Respondent is to be believed, any litigation that Chasnoff participated in after that apparently requires the Board to pay his attorney fees, even if the Board didn t file the litigation, and even if Chasnoff never requested attorney fees. Chasnoff in his Brief does not deny that he never specially pled nor moved for the attorney fees that the trial court awarded him. Instead, he spends considerable energy and verbiage trying to justify how the trial court could sua sponte award him attorney fees that he didn t even request. First, no amount of legal argument can magically transform Ishmon v. Board of Police Commissioners into a Sunshine Law case, and therefore, the trial court s decision to award attorney fees incurred in Ishmon on the basis of a Sunshine Law violation cannot be supported. The trial court s erroneous references to the Sunshine Law as supporting such an award are particularly troublesome, since this Court, in its aforementioned 2011 opinion, dismissed Police Officers appeal because it purported to be based on the Sunshine Law, which this Court stated could not serve as a basis for the Police Officers assertion that the records should not be made public: A party s claim that a government agency is required to close records is not a claim under the Sunshine Law, which specifically prohibits such claims. Section 610.022.4. Rather, it is an independent action that must be based on the assertion of rights under a different statute or constitutional provision. 4
Thus, intervenors claim that they have privacy and property rights in records held by the Board that mandate closure of those records would be an independent cause of action against the Board to keep it from disclosing the records. [Citations omitted.] 334 S.W.3d at 152. Police Officers thereafter filed Ishmon, and clearly delineated it as a declaratory judgment action, combined with seeking injunctive relief. Chasnoff s intervention into Ishmon did not turn it into a Sunshine Law case. The Police Officers did not base their request for relief on the Sunshine Law. Rather, they alleged privacy and property rights authorized keeping records in which they were identified from being made public. Chasnoff cites, as he did in a footnote to his Trial Brief filed in the trial court, to a dissenting opinion joined by one other judge of the Missouri Supreme Court in Spradlin v. City of Fulton, 982 S.W.2d 255 (Mo. banc 1998), for a liberal construction of the attorney fee provision in the Sunshine Law, while ignoring the majority opinion that attorney fee statutes, being penal in nature, are to be strictly construed. Id. at 261-262. This appears tantamount to an admission by Chasnoff that there is no Missouri case which would authorize an award of attorney fees under the Sunshine Law in connection with the Ishmon litigation. 2 2 Even if Spradlin had been decided the other way, it seems questionable that it would have served as precedent for the award of attorney fees in this case. Spradlin was an action brought for violation of the Sunshine Law. An award of attorney fees in a case 5
Second, the Board did not align with the Police Officers to file Ishmon. Chasnoff s statement that the Board utilized the Ishmon case as a declaratory judgment action in an attempt to secure a judgment that the records at issue are closed, Respondent s Brief, at 42, not only is fiction, it is insulting, and imputes bad intent to the Board for litigation the Board did not even initiate, and without any support for the accusation. The Ishmon case was completely the creation and strategy of the Police Officers, and obviously was a follow-up to the appeal that the Police Officers had taken, which this Court had dismissed. Much like the trial court s findings of fact and conclusions of law, Chasnoff s Brief fails to explain how the Board, having been sued by Police Officers as the custodian of records of the IAD investigation they sought to keep from being made public, has responsibility for Chasnoff s attorney fees stemming from his involvement in the Ishmon case. That the Board was even a party to Ishmon was only because the Board was the repository of the records at issue. Moreover, a decision in Ishmon declaring that privacy and property interests of the Police Officers require that the records not be made public only marginally benefits the Board going forward. It seems questionable that such a decision would reach beyond what the Sunshine Law already authorizes, which is to close records to the extent they relate to [h]iring, firing, disciplining or promoting of particular employees by a public governmental body when brought on the basis of a Sunshine Law violation would still not authorize attorney fees in a case not brought under the Sunshine Law. Nor would it justify an award of attorney fees to a party who was not the plaintiff and who did not plead or move for attorney fees. 6
personal information about the employee is discussed or recorded. 610.021(3), RSMo.; and [i]ndividually identifiable personnel records, performance ratings or records pertaining to employees or applicants for employment 610.021(13), RSMo. Third, Chasnoff s attempt to defend the award of attorney fees under the collateral litigation exception to the American Rule makes two erroneous ex post facto arguments in attempting to refute the Board s argument that the collateral litigation exception does not apply. The collateral litigation exception allows a plaintiff in a case alleging breach of duty against a defendant, to recover the attorneys fees plaintiff expended to defend a different and collateral action brought by a third party. [Emphasis in original.] Auto- Owners Ins. Co. v. Ennulat, 231 S.W.3d 297, 307 (Mo. App. 2007). The Board pointed out in its original Brief that Ishmon was not brought by a third party because Police Officers had been allowed to intervene in Chasnoff s original action. Brief of Appellants St. Louis Board of Police Commissioners, at 30-31. Chasnoff attempts to refute this by arguing that the decision allowing the police officers to intervene was ultimately reversed. Respondent s Brief, at 43. This, of course, constitutes an ex post facto argument. It reviews the subsequent result, rather than judge by what was occurring at the time the purported collateral litigation was filed, which must be the standard for the collateral litigation exception to apply. Moreover, it ignores the materiality of Police Officers being allowed to intervene in Chasnoff s lawsuit to the subsequent lawsuit now being portrayed as collateral litigation. Without Police Officers intervention in Chasnoff s lawsuit, there would have been no appeal to this Court in 2011. And without 7
that appeal, there would have been no opinion from this Court recognizing intervenors claim that they have privacy and property rights in records held by the Board that mandate closure of those records would be an independent cause of action against the Board to keep it from disclosing the records. 334 S.W.3d at 152. And without that recognition, it seems questionable whether Ishmon would even have been filed. Chasnoff repeats this mistaken ex post facto argument in attempting to rebut the Board s contention that the collateral litigation exception does not apply because the Ishmon case, first, was not the natural and proximate result of the wrong or breach of duty by the other party namely, the Board and second, that Chasnoff s fees were not necessarily and in good faith incurred to protect the wronged party from injury. Chasnoff cites the Consent Judgment between the Board and Police Officers as the basis of the alleged wrong or breach of duty. Once again, Chasnoff views this with hindsight, which is inherently contrary to the requirement that the litigation be the natural and proximate result of a wrong or breach of duty. At the time Ishmon was filed, Police Officers had just pursued an appeal which, while unsuccessful, had clearly included some language which led them to believe they could file a lawsuit to invoke privacy and property rights to keep records identifying them from being made public. There was nothing that the Board did which led them to file this lawsuit. With respect to the Board s argument that Chasnoff s fees from intervening were not necessarily incurred to protect him from injury, the Board was disputing the trial court s finding that intervenor defendant [Chasnoff] was obliged to intervene in the Ishmon case in order to vindicate his judgment in the original Chasnoff case. SLF, 8
0124. The Board pointed out that Chasnoff had intervened in Ishmon before the Board was even served with summonses. The Board has never attempted to argue that Chasnoff had no right to intervene. But the Board does contest whether Chasnoff s intervention was necessarily incurred to protect him from injury. Unless Chasnoff has a clairvoyance formerly thought to be the exclusive province of fortune-tellers, he could not know what the Board s position was going to be before the Board even had the opportunity to assert it. The truth is that at the time Chasnoff intervened, even the Board did not know what its position was going to be relative to the allegations in Ishmon. Once again, Chasnoff, in Respondent s Brief, at 44, is viewing his intervention in Ishmon through the prism of subsequent events. This is not appropriate, for purposes of applying the collateral litigation exception. Fourth, there is no basis for awarding attorney fees under the special circumstances or unusual circumstances exception to the American Rule. Preliminarily, it should be noted that the trial court did not purport to base its sua sponte attorney fee award on the special circumstances or unusual circumstances exception, and obviously, since Chasnoff did not move for or specially plead attorney fees, the issue was never raised in the trial court. Review on appeal is limited to issues and theories heard by the trial judge. State Farm Mut. Auto. Ins. Co. v. Esswein, 43 S.W.3d 833, 839 (Mo. App. 2000). Parties are bound on appeal by the positions they took in the trial court. Id. Since the trial court made no findings citing the special circumstances or unusual circumstances exception, it is wholly inappropriate for Chasnoff to now raise it on appeal. Although this Board would vigorously contest the untrue accusations 9
Chasnoff levels against it in Respondent s Brief, at 45-46, the issue simply is not a part of this appeal. CONCLUSION The trial court s sua sponte decision to award attorney fees to Chasnoff and against the Board of Police Commissioners for litigation the Board did not file and for which Chasnoff never even asked the trial court to award attorney fees was erroneous. The Board finds it troubling that the trial court exceeded its mandate from the previous decision of this Court as well as the scope of the pleadings before it and became an advocate for Chasnoff to the point of awarding Chasnoff beyond anything Chasnoff sought. Now Chasnoff attempts to justify on appeal what he never asked for in the trial court. However, he cites no reported opinion from Missouri which supports the trial court s award. In fact, the case he most clearly relies on, Spradlin, supra, counsels a decision that would reject an award of attorney fees in these circumstances. In light of the foregoing, the trial court s award of attorney fees against the Board must be reversed. OFFICE OF THE CITY COUNSELOR POLICE SECTION /s/ Mark Lawson Mark Lawson #33337 Associate City Counselor 1915 Olive St., Room 773 St. Louis, MO 63103 (314) 444-5609 (314) 444-5611 mlawson@slmpd.org ATTORNEY FOR APPELLANTS ST. LOUIS BOARD OF POLICE COMMISSIONERS, et al. 10
CERTIFICATE OF COMPLIANCE The undersigned hereby certifies that: 1. Counsel for Appellants is Mark Lawson, MBE #33337, 1915 Olive St., Room 773, St. Louis, MO 63103; Phone: (314) 444-5609; Fax: (314) 444-5611; E-Mail: mlawson@slmpd.org. 2. The Brief to which this Certificate is attached complies with the limitations contained in Rule 84.06(c) and Local Rule 360. 3. This Brief contains 2,074 words in Microsoft Word format, using Times New Roman 13-point font. /s/ Mark Lawson Mark Lawson #33337 CERTIFICATE OF SERVICE The undersigned hereby certifies that on January 12, 2015, the foregoing Brief was electronically filed with the Clerk of the Court to be served by operation of the Court s automated filing system on, upon the following attorneys of record: Anthony E. Rothert American Civil Liberties Union of Eastern Missouri 454 Whittier St. St. Louis, MO 63108 Co-Counsel for Respondent Gillian R. Wilcox American Civil Liberties Union of Missouri Foundation 3601 Main St. Kansas City, MO 64111 Co-Counsel for Respondent Neil J. Bruntrager Mary L. Bruntrager Bruntrager & Billings, P.C. 1735 S. Big Bend Blvd. St. Louis, MO 63117 Attorneys for Appellants Wendell Ishmon, et al. /s/ Mark Lawson 11