Malin v. Cole Cnty. Prosecuting Attorney

Decision Date27 July 2021
Docket NumberWD 83774
Citation631 S.W.3d 638
Parties Aaron M. MALIN, Appellant, v. COLE COUNTY PROSECUTING ATTORNEY, Respondent.
CourtMissouri Court of Appeals

David Roland, Mexico, MO, Counsel for Appellant.

Anthony Rothert, St. Louis, MO, Co-Counsel for Appellant.

Gillian Wilcox, Kansas City, MO, Co-Counsel for Appellant.

Jessica Steffan, St. Louis, MO, Co-Counsel for Appellant.

Kayla Deloach, St. Louis, MO, Co-Counsel for Appellant.

Michael Berry, Jefferson City, MO, Counsel for Respondent.

Brittany Briggs, Jefferson City, MO, Co-Counsel for Respondent.

Before Division One: Anthony Rex Gabbert, P.J., Edward R. Ardini, Jr., and Thomas N. Chapman, JJ.

Thomas N. Chapman, Judge

Aaron Malin ("Malin") appeals a judgment of the Circuit Court of Cole County denying his Motion for Civil Contempt, which requested that the Cole County Prosecuting Attorney (the "Prosecutor") be found in contempt for failing to comply with an earlier judgment that required the Prosecutor to search for and produce records responsive to records requests made by Malin. He raises four points on appeal. Points one and two fail to comply with the requirements of Rule 84.04(d), preserve nothing for review, and are denied. Malin's third point has not been preserved and is denied. Malin's fourth point is also denied. The judgment is affirmed.


In 2015, Malin made three separate records requests to the Prosecutor. The Prosecutor responded (sometimes untimely) with general objections; indicated that the requests were too burdensome; and declined to confirm or deny the existence of the requested records. Malin filed a petition in the circuit court alleging that the Prosecutor had committed Sunshine Law violations. On May 26, 2017, Malin moved for summary judgment, which the trial court granted. The trial court's judgment ("Malin I Judgment") decreed:

1. Defendant knowingly and purposely violated the Sunshine Law.
2. Defendant must search for and produce all open records responsive to Plaintiff's requests, which includes the following:
a) any correspondence or communication between the Office of the Prosecuting Attorney of Cole County (or its associates/employees) and the MUSTANG drug task force (or its associates/employees);
b) any indictments handed down in Cole County between July 1, 2014 and the present, limited to indictments for selling narcotics in public housing; and
c) any Sunshine Law (or open records) requests received by the Cole County Prosecutor's Office, as well as any responses provided, between January 1, 2015 and the present.
3. Defendant is ordered to pay a $12,100 civil penalty to Plaintiff.
4. Defendant is further ordered to pay Plaintiff's costs and reasonable attorneys’ fees in the amount of $24,070.00. This judgment is final for purposes of appeal.

The Prosecutor appealed, and our court affirmed the Malin I Judgment.

Malin v. Cole Cnty. Pros. Att'y , 565 S.W.3d 748 (Mo. App. W.D. 2019). In conjunction with the appeal, Malin moved for attorney fees and his motion was taken with the case. Our court granted the motion and remanded the issue to the trial court to determine the reasonableness of Malin's attorney's fees on appeal and enter an appropriate award.

After remand, the parties began discussions related to the production of records and the payment of monetary fees and penalties with respect to the Malin I Judgment. In March of 2019, the Prosecutor paid the monetary part of the judgment and directed personnel to begin to search for records responsive to Malin's requests. The Prosecutor produced a number of records to Malin.

Dissatisfied with the Prosecutor's efforts with respect to the production of documents, Malin filed a Motion for Civil Contempt on June 12, 2019, which sought to enforce the Malin I Judgment. After Malin filed his Motion for Civil Contempt, the Prosecutor provided a number of other documents to Malin on June 28, 2019. At that time, the Prosecutor indicated to Malin that additional documents might be discovered through a forensic review of the office's IT systems, and offered to discuss the cost to Malin for undertaking such a search.1

On June 30, 2019, the Prosecutor filed a response to Malin's Motion for Civil Contempt, and included in that response was a "Motion for Entry of Satisfaction of Judgment" that requested that the court "enter satisfaction of judgment or [sic] record for the Court's judgment on civil penalties and attorney's fees." On July 1, 2019, Malin filed a "Partial Satisfaction of Judgment," in which Malin acknowledged that the Prosecutor had paid in full the civil penalties and the attorney's fees that had accrued at the time our court issued its opinion affirming the trial court's Malin I Judgment. The "Partial Satisfaction of Judgment" also acknowledged that the Prosecutor had fulfilled the requirements of the Malin I Judgment with respect to his second and third records requests, but contended that the Prosecutor had yet to fulfill the part of the order that required the Prosecutor to "search for and produce all open records" responsive to his first request, which included "any correspondence or communication between the Office of the Prosecuting Attorney of Cole County (or its associates/employees) and the MUSTANG drug task force (or its associates/employees)[.]"

On October 18, 2019, a hearing was held on Malin's Motion for Civil Contempt. On December 18, 2019, the trial court entered a handwritten order that stated: "Court finds that Defendant is not in Contempt. Counsel for defendant is to prepare a proposed order." On January 2, 2020, the trial court issued the judgment which is the subject of this appeal, entitled "Final Judgment and Order Denying Plaintiff's Motion for Civil Contempt" ("Malin II Judgment" or "Malin II Judgment Denying Motion for Contempt"). In denying Malin's Motion for Civil Contempt, the trial court concluded that Malin had failed to meet his burden of proof to show that the Prosecutor failed to abide by the court's prior order; and found that the Prosecutor had acted in "good faith" in searching for the requested records and in paying the monetary judgment. As an additional ground for denying the motion, the trial court found that the Prosecutor had met his burden of showing that he did not act in intentional contempt for the Court or its orders.

Malin appeals.

Standard of Review

"As in any court tried matter, in a civil contempt proceeding, [t]his court will affirm the judgment unless there is no substantial evidence to support the decision, the decision is against the weight of the evidence, or the decision erroneously declares or applies the law.’ " Ream-Nelson v. Nelson , 333 S.W.3d 22, 28 (Mo. App. W.D. 2010) (quoting Walters v. Walters , 181 S.W.3d 135, 138 (Mo. App. W.D. 2005) ).


At the outset, we note that Malin's briefing makes clear that he is not appealing the trial court's denial of his Motion for Civil Contempt, and that none of his points challenge the denial of his Motion for Civil Contempt. Malin instead attempts to challenge (in his first two points on appeal) the trial court's purported entry of a "New Judgment" that, Malin argues, erroneously amended the Malin I Judgment. In his third point, Malin challenges a specific finding of the trial court without challenging the judgment it supports, and without having preserved any argument regarding the form of the judgment. In his fourth point, Malin argues that the trial court erred in failing to award his attorney's fees incurred in prosecuting the motion for contempt (which was denied and which denial is not challenged on appeal). For ease of analysis, we address these points out of order, addressing point two first, then point one, and concluding with points three and four.

Point Two

Malin's second point states:

The trial court erred in entering the New Judgment because its ruling erroneously applied Rule 74.11(c) in that a party asking a court to deem a judgment satisfied must bear the burden of proving that the judgment has, in fact, been satisfied.

Malin's second point fails to comply with the briefing requirements of Rule 84.04(d) and preserves nothing for review. See Wallace v. Frazier , 546 S.W.3d 624, 628 (Mo. App. W.D. 2018).

Rule 84.04(d) governs briefing requirements with respect to points relied on, and provides:

(1) Where the appellate court reviews the decision of a trial court, each point shall:
(A) Identify the trial court ruling or action that the appellant challenges;
(B) State concisely the legal reasons for the appellant's claim of reversible error; and
(C) Explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.
The point shall be in substantially the following form: "The trial court erred in [identify the challenged ruling or action ], because [state the legal reasons for the claim of reversible error ], in that [explain why the legal reasons in the context of the case, support the claim of reversible error ]."

"The purpose of the points relied on is ‘to give notice to the opposing party of the precise matters which must be contended with and to inform the court of the issues presented for review.’ " Hiner v. Hiner , 573 S.W.3d 732, 735-36 (Mo. App. W.D. 2019) (quoting Wallace , 546 S.W.3d at 627 ). As stated in Hiner :

Compliance with Rule 84.04 briefing requirements is mandatory in order to ensure that appellate courts do not become advocates by speculating on facts and on arguments that have not been made. Deficient points relied on force the appellate court to search the argument portion of the brief or the record itself to determine and clarify the appellant's assertions, thereby wasting judicial resources, and, worse yet, creating the danger that the appellate court will interpret the appellant's contention differently than the appellant intended or his opponent understood.

Id. at 736 (quoting Wallace , 546 S.W.3d at 627-28 ).

Malin's second point fails to identify a specific action of the trial court t...

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