Jenkins & Kling, P.C. v. Missouri Ethics Com'n, 70496

• Decision Date: 06 May 1997
• Docket Number: No. 70496,70496
• Court: Missouri Court of Appeals
• Parties: JENKINS & KLING, P.C., f/k/a Jenkins, Kling & Sauerwein, P.C., Plaintiff/Respondent, v. The MISSOURI ETHICS COMMISSION, John Maupin, in his official capacity as Chairman of The Missouri Ethics Commission, Defendants/Appellants, Citizens to Re-Elect Virvus Jones, and Friends of Virvus Jones, Defendants.

Page 56

945 S.W.2d 56

JENKINS & KLING, P.C., f/k/a Jenkins, Kling & Sauerwein P.C., Plaintiff/Respondent, v. The MISSOURI ETHICS COMMISSION, John Maupin, in his official capacity as Chairman of The Missouri Ethics Commission, Defendants/Appellants Citizens to Re-Elect Virvus Jones, and Friends of Virvus Jones, Defendants.

No. 70496.

Missouri Court of Appeals,

Eastern District,

Division Two.

May 6, 1997.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jane A. Rackers, Asst. Atty. Gen., Jefferson City, for defendants/appellants.

Michael P. Stephens, Roger W. Pecha, Jenkins & Kling, P.C., Clayton, for plaintiff/respondent.

Before CRANE, P.J., and GERALD M. SMITH and PUDLOWSKI, JJ.

PER CURIAM.

Ronald E. Jenkins was appointed as a special prosecutor by the St. Louis City Circuit Court pursuant to § 105.961.2 RSMo 1994 to investigate a complaint of campaign finance violations by St. Louis Comptroller Virvus Jones. Jenkins investigated the complaint, determined that criminal charges were not warranted, filed a civil action against two of Jones' campaign committees, and recovered civil fines in the amount of $10,000.00 by a consent judgment. His law firm then filed this action to recover his legal fees. The trial court entered a judgment for fees, interest, and costs against the Missouri Ethics Commission and its chairman, John Maupin, jointly and severally. They appeal. We reverse.

The Missouri Ethics Commission (hereinafter "the Commission") is a bipartisan commission composed of six members who are appointed by the governor with the advice and consent of the senate. § 105.955. The Commission is directed to receive complaints regarding violations of campaign finance statutes. § 105.957. Upon receipt of a complaint, the Commission assigns the complaint to a special investigator who submits a report to the Commission. § 105.961.1. If the Commission, after review of the report, determines there are reasonable grounds to believe a criminal law violation has occurred, upon vote of four members, the Commission is directed to refer the report to the Missouri office of prosecution services which then recommends a panel of attorneys to the circuit court for appointment of a special prosecutor. § 105.961.2. The prosecutor is to be appointed pursuant to § 56.110 and paid as set out in § 56.130 which provides:

56.130. Power of appointee.--The person appointed shall possess the same power as the proper officer would if he was present and shall receive a reasonable fee for each case prosecuted to be fixed by the court and to be taxed and paid as other costs in criminal cases.

The prosecutor is then directed to either commence an action based on the reports by filing an information or seeking an indictment within sixty days of appointment or to file a written statement with the Commission explaining why criminal charges should not be sought. § 105.961.2. If the Commission concludes a violation of law has occurred, which either is not criminal or not appropriate for criminal prosecution, its proceedings are governed by other subsections of this statute. See §§ 105.961.3-105.961.7, 105.961.14.

In June, 1994 James F. Shrewsbury filed a complaint against Jones with the Commission. On June 23, 1994 the Commission found reasonable cause to believe there was evidence of criminal violations of campaign finance statutes and voted 5-0 to refer the matter to the Missouri office of prosecution services (MOPS) pursuant to § 105.961.2. MOPS submitted a list of five prosecutors to the Circuit Court of the City of St. Louis in accordance with § 105.961.2. By order dated July 7, 1994, the circuit court appointed Jenkins to serve as the special prosecutor pursuant to § 105.961.2. On August 10, 1994 the court amended its order to reflect that, at the request of both Jenkins and MOPS and "pursuant to § 105.961.2," Jenkins was appointed as special prosecutor "to take such action authorized by law as he may deem appropriate concerning the above styled cause."

Jenkins did not institute criminal charges. Jenkins testified that he reported to the Commission that his investigation did not find any evidence that would support a criminal conviction against Jones or the campaign committees. He negotiated an agreement with Jones by which Jones would enter into a consent judgment on behalf of his campaign committees to pay civil penalties totaling $10,000.00. On August 26, 1994 Jones entered into and the court approved the consent judgment. The Jones committees paid the civil penalties with checks payable to the State of Missouri which Jenkins forwarded to the Commission. The checks were deposited in the state treasury.

The petition was styled "State of Missouri, ex rel., Ronald E. Jenkins, Esq., Special Prosecutor, plaintiff, v. Citizens to Re-Elect Virvus Jones, and Friends of Virvus Jones." The petition alleged that the action was brought by the state at the relation of Jenkins as special prosecutor and alleged he was proceeding under § 105.961.2 with the powers provided in § 56.130.

On September 15, 1994 Jenkins sent the Commission, in care of its director of compliance, a legal bill for services rendered in the amount of $9,353.11. He made two other demands for payment.

On September 19, 1995 Jenkins's law firm, Jenkins & Kling, P.C., filed a four count petition against the Commission and John Maupin, in his official capacity as Chairman of The Missouri Ethics Commission, as well as the two Jones campaign committees to recover his legal fees of $9,353.11, interest, and costs. The plaintiff law firm sought recovery from the Commission and Maupin under theories of breach of contract, suit on account and quantum meruit. The law firm sought a statutory remedy under § 56.130 against the campaign committees. The court entered a default judgment against the campaign committees for failure to appear. The case was tried on the counts against the Commission and Maupin on January 18, 1996. On March 25, 1996 the court entered judgment against the Commission and Maupin, jointly and severally, in the amount of $9,353.11 plus prejudgment interest of $543.65 for a total award of $9,896.76. Costs were taxed against the Commission and Maupin.

The Commission and Maupin first contend that no contractual, statutory, or other authority exists to support the trial court's judgment allowing the plaintiff law firm to recover Jenkins's legal fees from them. We agree.

In Count I the plaintiff law firm ¹ alleged that a contract was formed on or about July 7, 1994, the date of Jenkins's appointment as special prosecutor, when the plaintiff law firm promised to provide legal services and the Commission promised to pay for them. In Count II, denominated suit on account, the plaintiff law firm alleged that it provided legal services to the Commission at its special instance and request between July 7, 1994 and August 26, 1994. In Count III the plaintiff law firm alleged the Commission knowingly accepted the legal services and benefitted from them.

At trial Jenkins testified that he did not have an express written or verbal contract with the Commission. Rather, he testified the agreement arose from the statutory appointment procedure and confirmation by Michael Reid, the Commission's...