Kabir v. Missouri Dept. of Social Services
| Decision Date | 12 January 1993 |
| Docket Number | No. WD,WD |
| Citation | 845 S.W.2d 102 |
| Parties | Mohammed A. KABIR, M.D., Appellant, v. MISSOURI DEPARTMENT OF SOCIAL SERVICES, et al., Respondents. 46140. |
| Court | Missouri Court of Appeals |
Robert P. Baine, Jr., Florissant, for appellant.
William L. Webster, Atty. Gen., Christine A. Alsop, Asst. Atty. Gen., Jefferson City, for respondents.
Before FENNER, P.J., and TURNAGE and KENNEDY, JJ.
Mohammed A. Kabir filed suit against the Missouri Department of Social Services for breach of contract. Also named as defendants were John Dye and Michael V. Reagan. The court sustained a motion to dismiss apparently on the theory that the suit was barred by sovereign immunity. Kabir appeals and contends that sovereign immunity is not applicable. Affirmed in part and reversed in part.
Kabir is a medical doctor. He was a provider as defined in § 208.164.1(8), RSMo 1986, to provide services to eligible persons. In Kabir v. Missouri Dept. of Social Services, 782 S.W.2d 706 (Mo.App.1989), this court affirmed a finding by the Administrative Hearing Commission that the Department had improperly terminated Kabir's participation in the Title XIX (Medicaid) Physician's Service program. Thereafter, Kabir filed this suit against the Department alleging a breach of contract and seeking actual and punitive damages.
In addition to the Department, Kabir named Michael Reagan and John Dye, an investigator with the Department, as defendants. Service of process was never completed as to Reagan and he is not a party to this suit. A motion to dismiss on behalf of Dye was filed and the court sustained that motion. However, Kabir makes no allegation of error on this appeal of the dismissal of Dye. When an issue is presented and decided by the trial court, an appellant abandons any claim of error as to an issue not raised in its points relied on in its appellant's brief. Dycus v. Dycus, 806 S.W.2d 750, 752 (Mo.App.1991). By failing to raise any issue concerning the dismissal of Dye in his points relied on, Kabir has abandoned any claim of error concerning the dismissal of his suit against Dye.
The Department filed a motion to dismiss and took the position that it had not entered into a contract with Kabir and that Kabir's suit was barred by sovereign immunity. Although the trial court sustained the motion to dismiss without assigning a reason, it would appear that the dismissal was based on a finding of sovereign immunity.
In its brief on this appeal, the State has changed its position and now concedes that the Department did enter into an agreement with Kabir. The State further concedes that under V.S. DiCarlo Constr. Co., Inc. v. State, 485 S.W.2d 52, 54[1, 2] (Mo.1972), sovereign immunity does not bar Kabir's suit. In DiCarlo, the court held that, "when the State enters into a validly authorized contract, it lays aside whatever privilege of sovereign...
To continue reading
Request your trial
-
Brunner v. City of Arnold & Am. Traffic Solutions, Inc.
...and Count VII (fraud)—by not raising any claim of error in their points relied on regarding these claims. Kabir v. Mo. Dept. of Soc. Servs., 845 S.W.2d 102, 102–03 (Mo.App. W.D.1993) (“When an issue is presented and decided by the trial court, an appellant abandons any claim of error as to ......
-
Diaz v. AutoZoners, LLC
...abandons any claim of error as to an issue not raised in its points relied on in its appellant's brief." Kabir v. Mo. Dep't of Soc. Servs., 845 S.W.2d 102, 103 (Mo. App. W.D. 1993).27 We review challenges to the sufficiency of the evidence de novo, accepting all facts and reasonable inferen......
-
In re Care and Treatment of Johnson, 26023.
...338 (Mo.App.2000); Lesinski v. Joseph P. Caulfield & Associates, Inc., 12 S.W.3d 394, 396 (Mo.App.2000); Kabir v. Missouri Dept. of Social Services, 845 S.W.2d 102, 103 (Mo.App.1993). The rationale for this rule was explained in Parker v. Wallace, 431 S.W.2d 136 Plaintiff made a motion for ......
-
Judy v. Arkansas Log Homes, Inc.
...ex rel. Missouri Div. of Transp. v. Sure-Way Transp., Inc., 884 S.W.2d 349, 351 (Mo.App.1994). See also Kabir v. Missouri Dep't of Social Servs., 845 S.W.2d 102, 103 (Mo.App.1993); Chism v. Steffens, 797 S.W.2d 553, 557 (Mo.App.1990). We are mindful of the Eastern District's opinion in Shar......