Birdsong v. Children's Div.
| Decision Date | 19 May 2015 |
| Docket Number | WD 78049 |
| Citation | 461 S.W.3d 454 |
| Parties | Aaron Birdsong, Respondent, v. Children's Division, Missouri Department of Social Services, Appellant. |
| Court | Missouri Court of Appeals |
David J. Moen, Jefferson City, MO, for respondent.
Daniel W. Follett, Jefferson City, MO, for appellant.
Before Division Three: Mark D. Pfeiffer, Presiding Judge, Gary D. Witt, Judge and Anthony Rex Gabbert, Judge
The State, on behalf of the Missouri Department of Social Services Children's Division (the “Division”), brings this appeal challenging the trial court's award of attorney's fees following its grant of summary judgment to Aaron Birdsong (“Birdsong”). The State argues that the award of attorney's fees has no statutory basis and that Birdsong's case does not fall within any exception to the American Rule.1 For reasons explained below, we reverse and vacate the award of attorney's fees.
The Division brought an administrative action that Birdsong had used his position as a teacher and track coach in a public school to sexually abuse a seventeen-year-old student. The Division alleged, based on its investigation, that Birdsong had committed the following acts:
In the fall of 2010, Birdsong was a teacher and a track coach at Eldon High School. The child victim was a seventeen-year-old female student who was on the track team. Birdsong began an inappropriate relationship with her, which included an exchange of hundreds of “romantic” text messages (including more than 200 over the course of 24 hours). One text message included a photograph in which the victim was wearing only her underwear. Birdsong also made comments in the text messages about trying to see her breasts as she picked up books while at school. Birdsong told the girl he was having difficulty in his marriage and also instructed the girl not to tell anyone about their relationship because he would get in trouble. Birdsong invited the victim to his home on the pretense of babysitting for him and his wife, but then he began kissing the victim on the lips and touching her breasts and thigh. The victim became scared and left the house.
On January 10, 2011, the Division received a hotline call reporting child sexual abuse by Birdsong against the victim.3 Birdsong was arrested the next day and two separate administrative actions were instigated against him. The first was a child protection services investigation by the Division to either substantiate or refute the alleged actions against the victim. The second was a disciplinary action filed months later by the Missouri Department of Elementary and Secondary Education (“DESE”). The disciplinary action was filed pursuant to section 168.071.1, which authorizes the Board of Education to request that Birdsong's teaching certificate be “disciplined” for a violation of 5 CSR 80–800.300(1)(C)4 where there is “evidence of the certificate holder's incompetence, immorality, or neglect of duty.” Birdsong was placed on administrative leave and later voluntarily resigned from his teaching position.5
Three months after the hotline call, the Division's Out of Home Investigation Unit (“OHI”) completed its investigation and concluded that Birdsong had committed “sexual maltreatment” of the student victim.6 Birdsong appealed the Division's finding. Two months later, the OHI upheld the Division's finding and referred it to the Child Abuse/Neglect Review Board (“CANRB”)7 for an administrative review. In Birdsong's written request for review, he admitted to kissing the student, making comments about looking down her shirt while she was in the school, and receiving a picture of her topless. Following a hearing, the CANRB affirmed the finding of sexual abuse and ordered that Birdsong's name be placed on the “central registry.”8
Birdsong filed a Petition for De Novo Review in the Circuit Court of Cole County, alleging that the Division improperly used definitions of child sexual abuse that did not comport with statutory definitions, thereby making its determination and subsequent placement of his name on the central registry, erroneous. He then filed a motion for summary judgment. The Division did not file a response to the motion for summary judgment, but did appear and argue against the grant of the motion before the trial court. The trial court granted Birdsong's motion for summary judgment and reversed the Division's determination, finding that it erroneously employed a non-statutory definition of sexual child abuse and that Birdsong's conduct did not fall within the definitions of “sexual abuse of a child” in the statutes or regulations.9
After being granted judgment in the Division's action but before the judgment was final, Birdsong filed a motion to recover attorney's fees. Birdsong agrees that, under existing case law interpreting section 536.087,10 the CANRB review is not a contested case, which is a requirement for an award of attorney's fees under chapter 536.
Birdsong argues that he is entitled to an award of attorney's fees under an exception to the American Rule doctrine. The American Rule states that each party should bear his or her own attorney's fees unless a recognized exception applies. Birdsong contends that “special circumstances” exist in this case that meet such an exception.11 Birdsong argues that, because the Division relied on internal definitions of child sexual abuse that were not properly promulgated or codified, its conduct was more egregious and constituted “special circumstances.” Attached to his motion was his counsel's billing statement for services in the amount of $34,451.84. Also attached was an affidavit from an expert witness who was a local attorney attesting to the reasonableness of the total fees and to the $275 hourly billing rate. Included among his counsel's fees were time and expenses related to Birdsong's criminal matter, the DESE action, the Division's investigation of the hotline call, the CANRB review, the subsequent petition for de novo review filed in circuit court, as well as the motion for summary judgment.12
The trial court granted the motion for attorney's fees, finding, inter alia, that “special circumstances” existed which were that the Division knowingly and intentionally applied “its own internal standard for child sexual abuse and child abuse which are contrary to the Code of State Regulations and Missouri Statutes” in determining that Birdsong had committed abuse against this victim. The court then awarded Birdsong's counsel the full amount of fees requested. This appeal follows.
In Point I, the State argues that the trial court erred in awarding attorney's fees because there was no statutory authority to do so and Birdsong does not fall within any recognized exception to the American Rule. In Point II, the State contends that the trial court further erred by awarding attorney's fees related to the DESE's separate disciplinary action because Birdsong's defense of that action does not fall within the “collateral litigation” exception, nor any other exception, to the American Rule. Because we agree with the State on Point I, we do not reach Point II.
Whether an award of fees and expenses pursuant to section 536.087 was made contrary to law or in excess of the court's or agency's jurisdiction or authority raises a question of law which we review de novo . Baker v. Dep't of Mental Health, 408 S.W.3d 228, 232 (Mo.App.W.D.2013). Moreover, “[w]hether an award of fees and expenses is supported by competent and substantial evidence is judged by examining the record as a whole.” Id. (citation omitted). “The evidence is not viewed in the light most favorable to the [ ] decision.” Id. (citation omitted).
“Under the ‘American Rule,’ orders requiring one party to pay another party's attorney's fees or other expenses ordinarily are not permitted unless the parties' contract or a statute authorizes the court to make such an award.” Garland v. Ruhl, 455 S.W.3d 442 (Mo. banc 2015) (citations omitted). “Even when a statute allows a court to award attorney's fees, the doctrine of sovereign immunity prohibits Missouri courts from ordering the state to do so unless the legislature specifically waives that immunity.” Id. (citing Richardson v. State Highway & Transp. Comm'n, 863 S.W.2d 876, 882 (Mo. banc 1993) ). “Section 536.087 provides such a waiver under specified circumstances, and such waivers are to be strictly construed.” Id. (citation omitted).
“Section 536.087 waives sovereign immunity only ‘for unjustified positions by state agencies in contested administrative cases.’ ” Id. (citation omitted) (emphasis in original). It provides as follows:
A party who prevails in an agency proceeding or civil action arising therefrom, brought by or against the state, shall be awarded those reasonable fees and expenses incurred by that party in the civil action or agency proceeding, unless the court or agency finds that the position of the state was substantially justified or that special circumstances make an award unjust.
§ 536.087.1 (emphasis added).
As used in section 536.087, the following terms mean:
(1) “Agency proceeding”, an adversary proceeding in a contested case pursuant to this chapter in which the state is represented by counsel, but does not include proceedings for determining the eligibility or entitlement of an individual to a monetary benefit or its equivalent, child custody proceedings, eminent domain proceedings, driver's license proceedings, vehicle registration proceedings, proceedings to establish or fix a rate, or proceedings before the state tax commission;
§ 536.085(1) (emphasis added).
To qualify for fees under the statute, Birdsong's award of fees must be as a result of an adversary proceeding in a contested case in which the State is represented by counsel. § 536.085(1). Birdsong correctly points out that the issue of whether the...
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