Herron v. Whiteside, WD

Decision Date21 November 1989
Docket NumberNo. WD,WD
PartiesBill HERRON, Appellant, v. Bobby WHITESIDE, et al., Respondents. 41876.
CourtMissouri Court of Appeals

Bill Herron, Jefferson City, pro se.

William L. Webster, Atty. Gen., Kevin M.J. Crane, Asst. Atty. Gen., Jefferson City, for respondents.

Before BERREY, J., Presiding, and TURNAGE and ULRICH, JJ.


Bill Herron, an inmate at the Missouri State Penitentiary, appeals summary judgment in favor of the named prison employees. The judgment is affirmed.

In a pleading captioned "Petition for Breach of Duty," Mr. Herron alleged that seven named prison employees negligently or intentionally failed to safeguard his personal property left in his cell when he appeared in court outside the prison on December 16, 1985. He escaped. Mr. Herron alleges that in his absence prison employees gave away his property or allowed other inmates to remove it from his cell, and the property was not returned to him. He sought $6,561.68 in compensatory damages and $5,000 in punitive damages.

One year after Mr. Herron filed the petition and after extensive discovery, the defendants moved for summary judgment asserting that Mr. Herron abandoned his property when he escaped on December 16, 1985. Mr. Herron was charged with the crime of escape and armed criminal action. In support of the motion, the prison employees submitted the transcript of Mr. Herron's criminal jury trial which ended in his conviction of both charges.

The criminal trial transcript reveals the following pertinent facts: On December 16, 1985, Mr. Herron was taken in restraints from the penitentiary in Jefferson City to Columbia for a scheduled court appearance. After Mr. Herron completed his business with the court, a prison officer escorted him to an awaiting state vehicle outside the court house. As the officer was attempting to place Mr. Herron in the vehicle, Mr. Herron hesitated. At that moment, Rory Nitcher, a former cell mate of Mr. Herron, jumped from behind a car wielding a sawed-off shotgun, pointed the weapon at the officer, and ordered the officer not to move. Mr. Herron got into a light blue car and was soon joined by Mr. Nitcher who drove away. Later that day the police arrested Mr. Nitcher in the lobby of a Columbia hotel and learned that Mr. Herron was barricaded in a room at that hotel. After lengthy negotiations, the police recaptured Mr. Herron. The police found a sawed-off shotgun, ammunition, various tools including a bolt cutter, broken prison restraints, cans of hair dye, and makeup in Mr. Herron's hotel room when he was apprehended.

In suggestions in opposition to the motion for summary judgment, Mr. Herron admitted his escape but denied any intent to abandon or relinquish ownership of his personal property. Mr. Herron stated in his affidavit filed in support of his opposing suggestions that when he escaped he knew that he would eventually be apprehended and returned to the prison.

After a hearing at which both sides presented oral argument, the trial court granted summary judgment in favor of the defendant prison employees. The court concluded in its findings that "by escaping and failing to return of his own free will, plaintiff abandoned the personal property in his cell and forsook any right to expect defendants to safeguard such property against his possible but uncertain return."

In an untimely motion for new trial and a motion pursuant to Rule 74.06(b), Mr. Herron sought to set aside the summary judgment on other grounds. He contended that his escape was motivated by fear for his own safety at the penitentiary. Overruling that motion following a hearing, the trial court found that Mr. Herron failed to make the requisite showing of mistake, inadvertence, surprise, excusable neglect, fraud, misrepresentation, misconduct, or irregularity to warrant relief under Rule 74.06(b).

Mr. Herron argues that summary judgment was inappropriately granted because genuine issues of material fact exist regarding the circumstances of his escape. Contending lack of any intent to abandon the personal property left in his prison cell, he maintains that at the time of his escape he knew that he would be recaptured and that he fled out of fear for his own safety.

Mr. Herron's asserted claim that fear motivated his escape was not properly presented to the trial court. He advanced no theory of justification during the criminal proceedings nor during the civil proceedings before the granting of summary judgment. The record demonstrates that Mr. Herron had ample opportunity to engage in discovery, submit written motions and suggestions, and to participate in hearings. The trial court's denial of relief under Rule 74.06(b) was not an abuse of discretion.

This case presents issues concerning the abandonment of personal property. Because summary judgment was utilized, resolution of those issues necessitates reference to the procedural law of summary judgment and to the substantive law of abandonment.

Summary judgment must be sustained if there is no genuine issue as to any...

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13 cases
  • Wilson v. Altruk Freight Systems, Inc., No. 17509
    • United States
    • Missouri Court of Appeals
    • December 12, 1991
    ...appropriate vehicle for the assertion of an affirmative defense entitling a party to a judgment as a matter of law. Herron v. Whiteside, 782 S.W.2d 414, 416 (Mo.App.1989). It is no longer necessary for the movant to show entitlement to summary judgment by unassailable proof as was necessary......
  • Schwartz v. Lawson, WD
    • United States
    • Missouri Court of Appeals
    • September 25, 1990
    ...and other affirmative defenses. Kennon v. Citizens Mut. Ins. Co., 666 S.W.2d 782, 784-85[3,4] (Mo.App.1983); Herron v. Whiteside, 782 S.W.2d 414, 416[2, 3] (Mo.App.1989). The party who moves for summary judgment bears the burden to show that no issue of material fact remains. And although [......
  • In re Seizure of $82,000 More or Less
    • United States
    • U.S. District Court — Western District of Missouri
    • November 1, 2000
    ...is far more sensible for such criminals to disclaim any interest in the property and avoid possible prosecution. See Herron v. Whiteside, 782 S.W.2d 414, 416 (Mo.App. 1989). In this case, Lopez-Velez originally contested the forfeiture of the vehicle and the $24,000, but he never showed up ......
  • Schoenholz v. Hinzman
    • United States
    • Kansas Supreme Court
    • October 12, 2012
    ...give up the rights of ownership in the property. See In re Estate of Sauder, 283 Kan. 694, 714, 156 P.3d 1204 (2007); Herron v. Whiteside, 782 S.W.2d 414, 416 (Mo.App.1989) (abandonment of property requires intent plus an act); Conway et al. v. Fabian et al., 108 Mont. 287, 306, 89 P.2d 102......
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