In re Expungement of Arrest Records Related to Brown, No. WD 65475 consolidated with (Mo. App. 8/1/2006)
| Decision Date | 01 August 2006 |
| Docket Number | No. WD 65475 consolidated with,No. WD 65661.,WD 65475 consolidated with,WD 65661. |
| Parties | In Re: Expungement of Arrest Records Related to William T. Brown, Jr., Respondent, William T. Brown, D.O. And Judith Brown Appellants, v. State of Missouri and Missouri State Highway Patrol, Appellants, Harrah's North Kansas City, L.L.C. Respondent. |
| Court | Missouri Court of Appeals |
Before Robert G. Ulrich, P.J., Patricia Breckenridge, and James M. Smart, Jr., JJ.
This opinion addresses the appeals in two trial court rulings involving the Missouri statutes dealing with the expungement of arrest records. The appeals are consolidated for opinion purposes.
In March 2000, Harrah's North Kansas City, L.L.C., accused William T. Brown, D.O., of cheating in its casino and banned him from its property. Harrah's issued a report of the incident to the Missouri Gaming Commission and to the Clay County prosecutor. On the basis of this report, the Gaming Commission applied for an arrest warrant for Dr. Brown.
Ten months later, Dr. Brown spoke with Harrah's general manager regarding the incident. After apparently investigating the matter, the manager of security sent Dr. Brown a letter, stating that "(it) seems clear that this situation could have been handled in a better manner." The letter assured Dr. Brown that "this is not an acceptable standard here at Harrah's." Harrah's did not inform either the Gaming Commission or the prosecutor of the investigation or of its letter.
Approximately a year later, in March 2002, while in Miami, Florida, in connection with a cruise, Dr. Brown was arrested on the outstanding warrant. He was transported to the Dade County jail, where, he alleges, he was humiliated, beaten by a fellow inmate, and suffered emotional distress. He was held at the jail for 3-1/2 days before attorneys could secure a release on his promise that he would return to Missouri.
Upon his return to Missouri, Brown's attorney furnished the prosecutor a copy of the letter from Harrah's. The prosecutor dismissed the charges against Brown shortly thereafter.
On January 2, 2003, Dr. Brown and his wife filed a suit against Harrah's, which included claims of false arrest, malicious prosecution, negligence, intentional infliction of emotional distress, and loss of consortium.
Almost a year later, in December 2003, while his litigation against Harrah's was pending, Dr. Brown filed a petition seeking expungement of his arrest records pursuant to sections 610.122 through 610.125, which permit expungement in cases in which there was no probable cause for the arrest.1 After notice to law enforcement agencies, Judge Sutton entered an "order of expungement" in February 2004. Harrah's learned of the expungement from the Clay County Sheriff in March 2005, when, in connection with Brown's lawsuit, it requested records of Dr. Brown's arrest from the sheriff.
On April 6, 2005, Harrah's filed a summary judgment motion in the tort case pending before Judge Harman, claiming that Dr. Brown could not legally maintain his lawsuit, because under section 610.126 a petitioner may not bring a legal action related to an expunged arrest "subsequent to the expungement" of the arrest record.
The next day, April 7, Dr. Brown filed a motion to vacate the expungement order in Judge Sutton's division. The motion was based on Dr. Brown's attorney's discovery that under amendments to section 610.122, arrest records may be expunged only if "[n]o civil action is pending relating to the arrest or the records sought to be expunged." The motion informed the court that there had been a civil action pending at the time the petition for expungement was filed and granted. Brown asked the court to set aside the expungement order for the reason that the expungement was not authorized under the applicable statutes at the time it was granted.
That same day, without notice to the law enforcement agencies, Judge Sutton granted the motion, vacating the earlier expungement order, stating that "the previous expungement order is vacated and set aside because it was entered without appropriate legal and statutory authority."
On April 22, 2005, upon learning of this ruling, the State of Missouri and the State Highway Patrol filed a motion asking the trial court to vacate its recent order vacating the expungement order. The court held a hearing on that motion on May 5, 2005.
Dr. Brown's counsel argued that vacating the expungement was proper because the original expungement order was "void" on the basis of section 610.122(5), which prohibits an expungement if a civil action is pending related to the arrest. The State disagreed that the judgment was "void." It also pointed out that the criminal records repositories are placed in an untenable position if there is doubt as to the finality to such orders.
The trial court acknowledged that vacating the expungement order puts the State and the court system "in a very difficult position of trying to recreate the file," but denied the State's motion. The court ordered Brown's attorney "to produce any and all criminal records pertaining to the arrest," which counsel agreed to do. The court concluded in its judgment that the initial expungement order was "without authority and void" on the basis of section 610.122(5). The court stated that Dr. Brown was free to petition the court again for expungement later if he can show that the statutory requirements are met. This ruling is the subject of the State's appeal.
On May 4, which was the day before the court denied the State's motion to reinstate the expungement, Dr. Brown filed his response to Harrah's summary judgment motion in Judge Harman's division. He argued that summary judgment was inappropriate because this lawsuit was not brought "subsequent to the expungement" of his arrest records, but rather prior to the order of expungement. He also pointed out that the prior expungement order had been improperly granted.
In its reply, Harrah's summarized the proceedings on the State's motion to set aside the order vacating expungement and attached copies of the hearing transcript and related pleadings. Harrah's argued that the arrest records had been destroyed and could not be recreated by vacating the expungement order.
On May 27, 2005, the trial court granted Harrah's motion for summary judgment on the basis of section 610.126, which prohibits any legal action related to the arrest from being brought subsequent to the expungement of that arrest record. The court explained:
this court finds that plaintiff herein had obtained an expungement of the record of his arrest giving rise to the instant action. This court finds that Sec. 610.126, et seq. applies, and that the plaintiff [is] statutor[il]y barred from bringing this action.
Dr. Brown filed a motion to set aside the order granting summary judgment, alleging that the court had erroneously granted summary judgment on May 27 before he had the opportunity to file a sur-reply. He noted that Rule 74.04(c)(4) permits a sur-reply, which may include exhibits and affidavits, and that Rule 74.04(c)(6) mandates that the court decide the motion only after the response, reply, and sur-reply have been filed or the deadlines therefor have expired. The deadline for filing the sur-reply would not have expired until June 7.
In conjunction with this motion, Dr. Brown filed his sur-reply. It dealt primarily with the question of whether or not the expunged arrest records had been destroyed. Brown attached an affidavit from his attorney which recounted a statement by the Clay County prosecutor that a record of Brown's file "had been maintained in some format which would allow it to be retrieved." Attached to that affidavit was correspondence from the State Highway Patrol that included Dr. Brown's arrest record (showing that the records had not yet been destroyed) as well as the prosecutor's files and record of the arrest.
The trial court took no further action with respect to Brown's motion, which was denied by operation of law. The grant of summary judgment is the subject of Dr. Brown's appeal.
The Browns contend that the court erred in misapplying the law, failing to follow the procedural requirements for summary judgments, and disregarding a genuine issue of material fact. The State appeals the ruling purporting to set aside the order of expungement, which the State contends exceeded the court's authority.
The State's appeal of the ruling on the expungement and Dr. Brown's appeal of the summary judgment ruling are consolidated for opinion purposes.2 Both matters involve only questions of law, because the basic facts are not disputed.
Whether summary judgment is appropriate is a question of law, and is therefore reviewed de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record is viewed in the light most favorable to the party against whom judgment was entered. Id. The non-movant is entitled to all reasonable inferences from the record. Id. A grant of summary judgment should be sustained only if the moving party proved by uncontroverted facts the right to judgment as a matter of law. Id.
The trial court ruling purporting to vacate the expungement order is reviewed pursuant to Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Because there is no factual dispute as to the issues in question, we seek to determine whether the court properly declared and applied the law. Id.
We begin with the court's ruling on the expungement matter. Dr. Brown argues that the trial court properly vacated the earlier expungement order. The motion seeking to set aside the expungement, which was filed more than a year after the order of expungement was entered, did not purport to be brought under Rule 74.06 or under any other rule or...
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