Glover v. Michaud

• Decision Date: 24 May 2007
• Docket Number: No. 27565.,27565.
• Citation: 222 S.W.3d 347
• Parties: James B. GLOVER, Petitioner-Respondent, v. Wiatt MICHAUD, Respondent-Appellant.
• Court: Missouri Court of Appeals

222 S.W.3d 347

James B. GLOVER, Petitioner-Respondent, v. Wiatt MICHAUD, Respondent-Appellant.

No. 27565.

Missouri Court of Appeals, Southern District, Division Two.

May 24, 2007.

Carl Elvin Smith, Ava, MO, for appellant.

Respondent acting pro se.

JEFFREY W. BATES, Chief Judge.

Wiatt Michaud (Michaud) appeals from a judgment granting James Glover (Glover) a full order of protection pursuant to the Adult Abuse Act (the Act) after a bench trial. See §§ 455.005-.090.¹ On appeal, one of Michaud's points challenges the sufficiency of the evidence to support the judgment. Because the evidence presented was insufficient to authorize the entry of a full order of protection, we reverse the judgment. The case is remanded to the trial court with instructions to vacate the full order of protection and deny the petition.

On October 4, 2005, Glover filed a pro se petition under the Act seeking a protective order against Michaud. The petition alleged that Glover had no relationship with Michaud, other than being "harassed" by him, and that Glover was being stalked by Michaud. A supplemental narrative statement explaining these allegations was attached to the petition. In this narrative, Glover made the following assertions:

1. He was forced to stop his car on Swisher road on August 21, 2005, when Michaud turned his truck diagonally in front of Glover's vehicle.

2. Michaud got out of his truck and threatened violence against Glover because of testimony he had previously given in a court proceeding involving Michaud and a Mrs. Reynolds.

3. Michaud threatened to kill Glover if he ever stuck his nose in Michaud's business again.

Glover wanted an order of protection because he was scheduled to appear in court again on Mrs. Reynolds' behalf. An ex parte order against Michaud was issued that same day.

After two continuances, the case was finally heard by the trial court on February 9, 2006. At the outset of the hearing, Michaud's attorney made an oral motion to dismiss the petition for failure to state a claim. The trial court denied the motion.

During Glover's testimony, he explained that he had been a witness against Michaud in a case involving Mrs. Reynolds.² Glover then testified that, "[b]ecause of that, this man threatened my life, threatened me with bodily my [sic] harm, my property and everything else, and I feel like I need protection." Glover also mentioned that Michaud had tried to "create an incident" on October 20, 2005. When the court asked Glover if he had anything else to say, he replied, "[b]asically, that's my highlights."

On cross-examination, Glover admitted that he was not related to Michaud and that they had never resided with each other. Glover also admitted that the incident in which he was threatened by Michaud took place on August 21, 2005. During that single occurrence, Michaud backed his truck toward Glover, threatened him and sprayed gravel on his car. Glover had no other contact with Michaud except on October 20, 2005. The only thing said about that event was that Michaud "blocked the road" and "restrained" Glover against his will.

At the close of Glover's case, Michaud's attorney renewed the motion to dismiss and also asked for judgment in his client's favor because "I think there's insufficient evidence under his own testimony to establish a stalking situation, which is required under the statute."³ The trial court denied both motions. Additionally, over Michaud's objection, the court allowed Glover's petition to be amended to include the second "incident" on October 20, 2005.

Michaud then testified on his own behalf. He denied making any threats against Glover on August 21, 2005. He also denied being involved in any incident on October 20, 2005. According to Michaud, he left court on that date and was driving home on Highway 63. Glover was following behind in his vehicle. When Michaud reached Highway UU, he put on his directional signal and slowed down to make his turn. Nothing else occurred.

At the conclusion of the hearing, the court granted Glover a full order of protection. By its terms, the order expired on August 9, 2006. This appeal followed.

On appeal, Michaud raises three points of trial court error. First, he contends that Glover's petition failed to state a claim. Second, he contends the court erred in allowing Glover's petition to be amended. Third, he contends the judgment is not supported by the evidence. As Michaud's third point is dispositive, we address it first.

Appellate review of a court-tried case is governed by Rule 84.13(d). Foster v. Village of Brownington, 140 S.W.3d 603, 607 (Mo.App.2004). The trial court's judgment must be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).⁴ "Substantial evidence is competent evidence from which the trier of fact could reasonably decide the case." Leaverton v. Lasica, 101 S.W.3d 908, 911 (Mo.App.2003).

As noted above, the full order of protection against Michaud expired on August 8, 2006. That occurred after Michaud had filed a timely appeal from the judgment, but before the case could be submitted to this Court for a decision.⁵ As a preliminary matter, we must determine whether appellate review should be denied on the grounds of mootness. See O'Banion v. Williams, 175 S.W.3d 673, 675 (Mo. App.2005). If there is no justiciable controversy, we lack jurisdiction to consider the appeal and may dismiss sua sponte. State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001). In re A.T.H., 37 S.W.3d 423 (Mo.App.2001), presented the same issue in a case involving an appeal from an expired full order of child protection, and we held as follows:

An appellate court, however, may decide an otherwise moot issue if it is of general public interest and importance, recurring in nature, and will otherwise evade appellate review. The applicability of the [Child Protection Orders Act] is a matter of general public interest and importance, its applicability under factual situations similar to the one here may well be of a recurring nature, and the issues raised here could evade appellate review due to the necessary lapse of time between the filing of the notice of appeal and when the matter could be decided by an appellate court. Consequently, we will not invoke the mootness doctrine, but will review this case on its merits.

Id. at 426 (citation omitted); see also In re R.T.T., 26 S.W.3d 830, 834 (Mo.App.2000) (likewise involving an appeal from an expired full order of child protection). We believe this rationale is equally applicable here.

In addition, the entry of a full order of protection against a person can have some significant collateral consequences. For example, any person seeking to become a foster parent must undergo a background check to determine if any adult person residing in the same household has had a full order of protection entered against him or her. § 210.487.1(1). In addition, Michaud was adjudged to be a stalker by the trial court's decision. "This stigma does not disappear simply because the order has expired." Stiers v. Bernicky, 174 S.W.3d 551, 553 (Mo.App.2005). Under some circumstances, a person may be required to disclose such an adjudication in connection with requests for employment or licensure. Id. Therefore, we exercise our discretion to review Point III on the merits. See McGrath v. Bowen, 192 S.W.3d 515, 517 (Mo.App.2006).

"Any adult who has been subject to abuse by a present or former adult family or household member, or who had been a victim of stalking, may seek relief . . . by filing a verified petition alleging such abuse or stalking by the respondent." § 455.020 RSMo (2000). Section 455.010(5) defines family or household member to include:

spouses, former spouses, adults related by blood or marriage, adults who are presently residing together or have resided together in the past, an adult who is or has been in a continuing relationship of a romantic or intimate nature with the victim, and adults who have a child in common regardless of whether they have been married or have resided together at any time[.]

Since Glover and Michaud do not fall within any of the various definitions of what constitutes a family or household member, Glover could only seek an order of protection based upon an allegation of stalking. § 455.020 RSMo (2000); Towell v. Steger, 154 S.W.3d 471, 473 (Mo.App.2005). Stalking is defined to occur when:

[A]n adult purposely and repeatedly engages in an unwanted course of conduct that causes alarm to another person when it is reasonable in that person's situation to have been alarmed by the conduct. As used in this subdivision:

(a) "Course of conduct" means a pattern of conduct composed of repeated acts over a period of time, however short, that serves no legitimate purpose. Such conduct may include, but is not limited to, following the other person or unwanted communication or unwanted contact;

(b) "Repeated" means two or more incidents evidencing a continuity of purpose; and

(c) "Alarm" means to cause fear of danger of physical harm.

§ 455.010(10). For conduct to have "no legitimate purpose," it must be found to be not sanctioned by law or custom, to be unlawful, or not allowed. Towell, 154 S.W.3d at 475.

Glover's petition alleged that he was being stalked by Michaud. To obtain a full order of protection, Glover had to prove this allegation by a preponderance of the evidence. See § 455.040.1; Clark v. Wuebbeling, 217 S.W.3d 352, 354 (Mo.App. 2007); Vinson v. Adams, 188 S.W.3d 461, 464-65 (Mo.App.2006). "Courts must take great care to ensure the existence of sufficient evidence to support all elements of the Adult Abuse Act before entering a full order of protection." Clark, 217 S.W.3d at 354; McGrath v. Bowen, 192 S.W.3d 515, 517 (Mo.App.2006). Michaud contends that Glover failed to meet his burden of...