Hendrix v. City of St. Louis

• Decision Date: 09 November 2021
• Docket Number: No. ED 108858,ED 108858
• Citation: 636 S.W.3d 889
• Parties: Kristine HENDRIX, Appellant, v. CITY OF ST. LOUIS, et al., Respondent.
• Court: Missouri Court of Appeals

636 S.W.3d 889

Kristine HENDRIX, Appellant,

v.CITY OF ST. LOUIS, et al., Respondent.

No. ED 108858

Missouri Court of Appeals, Eastern District, DIVISION ONE.

Filed: November 9, 2021

FOR APPELLANT: Nathaniel R. Carroll, 7777 Bonhomme Avenue, Suite 1600, St. Louis, MO 63105, Jacqueline Kutnik-Bauder, Maureen G. Hanlon, John M. Waldron, 440 North 4^th Street, Suite 390, St. Louis, MO 63102.

FOR RESPONDENT: Erin K. McGowan, City Counselor's Office, 1200 Market Street, City Hall, Room 314, St. Louis, MO 63103.

Kelly C. Broniec, Presiding Judge

I. Introduction

Kristine Hendrix appeals the Twenty-Second Judicial Circuit Court's judgment, alleging that the circuit court erred in denying her "Motion to Recuse" and in granting summary judgment in favor of the City of St. Louis ("City") on Count V of her petition, alleging negligent training and supervision in connection with her excessive force/battery claim against City Police Officers Stephen Ogunjobi and Louis Wilson. Officer Ogunjobi cross-appeals the circuit court's denial of his motions for directed verdict on Ms. Hendrix's excessive force/battery claim. Officer Wilson cross-appeals the circuit court's denial of his request for attorney's fees.¹

We affirm.

II. Factual and Procedural Background²

On the evening of May 29, 2015, Hendrix and approximately thirty to fifty others gathered in downtown St. Louis to protest police brutality and systemic racism. The protest began with Ms. Hendrix and others silently handing literature to passersby. The protestors later marched from Keiner Plaza to nearby Busch Stadium, where a St. Louis Cardinals baseball game was in progress. They marched near the stadium for approximately two hours and continued to hand out literature. During this time, no protestors were arrested for impeding traffic. Later that evening, video footage from the City Police Department's Real Time Crime Center shows Ms. Hendrix and other protestors walking in front of numerous vehicles attempting to drive on the streets around Busch Stadium, which were open to vehicular traffic. Ms. Hendrix walked in front of traffic on 8th Street, near its intersection with Clark Avenue.

After the Cardinals game ended, Ms. Hendrix and approximately eleven or twelve other protestors reassembled on Washington Avenue, where there was significant postgame traffic. This group walked into the intersection of Washington Avenue and Tucker Boulevard, against a red traffic signal. The group then marched down Washington Avenue, arriving at its intersection with 11th Street, at which point officers from the St. Louis Metropolitan Police Department began arresting protestors for impeding the flow of traffic. While one protestor was being arrested, the group surrounded the protestor and the arresting officer ("the Lieutenant"), who put out an "officer in need of aid" call on his radio. The Lieutenant then approached Ms. Hendrix and reached for her arm, but she pulled both of her arms away and stepped backwards. The Lieutenant then turned his attention to another protestor and began to arrest him instead, while he was on the sidewalk. This protestor handed Ms. Hendrix a cell phone, which was being used to film the incident. Ms. Hendrix continued recording with the phone.

While filming, another officer on a bicycle approached Ms. Hendrix and other protesters, ordering them to "get back." Ms. Hendrix and another protestor were on the sidewalk at the time. She and the other protestor complied with the officer's order before they began to walk away. In the meantime, the Lieutenant ordered the arriving officers who had responded to his "officer in need of aid" call to "[g]rab anybody," because they were "all in the street." Officer Ogunjobi arrived at the scene and observed bicycle officers near several people, including Ms. Hendrix, and understood that these were the individuals impeding traffic. Officers Wilson and Ogunjobi approached Ms. Hendrix from behind as she walked away while continuing to record with the phone in her right hand. Officer Wilson testified that Ms. Hendrix did not comply with his order informing her that she was under arrest, but Ms. Hendrix testified that she did not hear any order that she was under arrest. Ms. Hendrix eventually began to turn towards Officer Wilson. Officer Ogunjobi then deployed his taser for the full, five-second cycle. The probes struck Ms. Hendrix in her hand and right breast. After the first cycle, Ms. Hendrix fell to the ground, with her torso on top of her arms and the phone. Officer Wilson testified that he also felt a shock from the taser as he was grabbing Ms. Hendrix when Officer Ogunjobi tased her. Although Ms. Hendrix's body obstructed the video recording, the phone continued to record audio of the incident.

While Ms. Hendrix was on the ground, an officer can be heard ordering her to put her hands behind her back. But before that officer even finishes his sentence, Officer Ogunjobi tased Ms. Hendrix a second time, again for the full, five-second cycle. Ms. Hendrix can be heard saying, "I can't[,] it hurts!" five times before saying, "It hurts so bad, please, please stop." Officer Ogunjobi then tased Ms. Hendrix for a third time in less than a minute, again administering the full, five-second cycle. Ms. Hendrix then cried out, "Oh my God, why are you doing this[?] I'm on the ground." After the third cycle, Officer Wilson managed to cuff Ms. Hendrix. Ms. Hendrix testified that she continued to feel pain from having been tased.

Ms. Hendrix filed suit on May 26, 2017, demanding a jury trial. She brought claims for excessive force/battery (Count I) and assault (Count II) against Officers Ogunjobi and Wilson; claims for false arrest/false imprisonment (Count III) and malicious prosecution (Count IV) against Officers Ogunjobi, Wilson, and the Lieutenant; and a claim for negligent training and supervision against the City (Count V).

On August 15, 2018, the City filed a motion for summary judgment on Count V, the negligent training and supervision claim, asserting its sovereign immunity as a defense. Ms. Hendrix responded by arguing that the City waived its sovereign immunity under § 537.610,³ by purchasing liability insurance or adopting a self-insurance scheme through the Public Facilities Protection Corporation ("PFPC"), which the City denied. On June 9, 2019, Ms. Hendrix moved to supplement the record with newly discovered evidence showing that the PFPC and the Twenty-Second Judicial Circuit had entered into cooperation agreements with one another. The circuit court heard and took the motion for summary judgment on Count V under advisement on June 19, 2019. On July 11, 2019, Ms. Hendrix then filed a "Motion to Recuse the Twenty-Second Judicial Circuit Court" pursuant to Rule 51.05 and § 508.090, requesting that the entire circuit "recuse itself from further consideration of [the City]’s Partial Motion for Summary Judgment." On November 20, 2019, the circuit court granted summary judgment in favor of the City on Count V, without ruling on Ms. Hendrix's "Motion to Recuse."

Officer Ogunjobi, Officer Wilson, and the Lieutenant moved for summary judgment on Counts I–IV. On Counts I and II, Officers Ogunjobi and Wilson argued that they were entitled to official immunity because their use of force was a discretionary act. On Count III, Officer Ogunjobi, Officer Wilson, and the Lieutenant argued that they arrested Ms. Hendrix following a lawful order, and therefore her claim for false arrest/false imprisonment could not survive. Finally, on Count IV, Officer Ogunjobi, Officer Wilson, and the Lieutenant argued that Hendrix could not adduce evidence sufficient to allow the trier of fact to find the existence of the elements necessary for a malicious prosecution claim. On December 17, 2019, the circuit court granted summary judgment on behalf of all three officers on the false arrest/false imprisonment and malicious prosecution claims, but allowed the excessive force/battery and assault claims against Officers Ogunjobi and Wilson to proceed to trial.

A jury trial took place on the remaining claims from February 18–20, 2020. The jury found in favor of Ms. Hendrix on her excessive force/battery claim against Officer Ogunjobi and awarded her actual damages. However, the jury found in favor of Officer Ogunjobi on the assault claim and in favor of Officer Wilson on both claims. Following trial, Officer Ogunjobi moved for a judgment notwithstanding the verdict on March 19, 2020, and Officer Wilson moved for an award of attorney's fees, costs, and reasonable expenses on March 23, 2020. Ms. Hendrix moved for additur and a new trial on May 4, 2020. The circuit court denied Officer Ogunjobi's and Ms. Hendrix's motions, but granted Officer Wilson's motion in part, awarding costs but not attorney's fees.

These appeals follow.

III. Discussion

A. Rule 84.04

We first note that the parties’ briefs run afoul of Rule 84.04 on multiple occasions. Rule 84.04 contains simple-to-follow procedural instructions for parties filing appeals in Missouri.

Rule 84.04 is not merely designed to enforce hypertechnical procedures or to burden the parties on appeal; rather, "[c]ompliance with the briefing requirements is required, not only so the appellant may give notice of the precise matters at issue, but also so that unnecessary burdens are not imposed on the appellate court and to ensure that appellate courts do not become advocates for the appellant."

Hoock v. SLB Acquisition, LLC , 620 S.W.3d 292, 303 (Mo. App. E.D. 2021) (quoting Blanks v. Fluor Corp. , 450 S.W.3d 308, 324 n.1 (Mo. App. E.D. 2014) ). Compliance with Rule 84.04 is mandatory. Bennett v. Taylor , 615 S.W.3d 96, 98 (Mo. App. E.D. 2020).

First, Rule 84.04(a)(1) requires that a brief contain "[a] detailed table of contents, with page references, and a table of cases (alphabetically arranged), statutes, and other authorities cited, with reference to the pages of the brief where they are cited." The table of contents in Ms....