Miller v. Dunn

• Decision Date: 14 February 2006
• Docket Number: No. ED 86297.,ED 86297.
• Citation: 184 S.W.3d 122
• Parties: Yolanda R. MILLER, Appellant, v. Richard DUNN, Director, Missouri Department of Health and Senior Services, Respondent.
• Court: Missouri Court of Appeals

184 S.W.3d 122

Yolanda R. MILLER, Appellant, v. Richard DUNN, Director, Missouri Department of Health and Senior Services, Respondent.

No. ED 86297.

Missouri Court of Appeals, Eastern District, Division Two.

February 14, 2006.

NOTE: THIS OPINION IS SUBJECT TO MODIFICATION OR TRANSFER TO THE SUPREME COURT.

Vincent G. Rapp, Vincent G. Rapp, LLC, St. Charles, MO, for Appellant.

Kelly D. Walker, General Counsel, Jeremiah W. (Jay) Nixon, Atty. Gen., Kathleen A. Fitzgerald, Assistant Attorney General, Jefferson City, MO, for Respondent.

GARY M. GAERTNER, SR., Presiding Judge.

Appellant, Yolanda R. Miller ("Miller"), appeals the judgment of the Circuit Court of St. Louis County affirming the decision of Respondent, Richard Dunn, Director, Missouri Department of Health and Senior Services ("the Department"). The Department's decision ordered Miller's name to be permanently placed on the Employee Disqualification List ("the EDL") because there was competent and substantial evidence that Miller, a nurse, misappropriated $15,000.00 from Martha Whitaker ("Whitaker"), a resident at a nursing home. We affirm.

Miller worked as a certified nursing assistant/licensed practical nurse part-time at Friendship Village of West County ("Friendship Village"), a nursing home in Chesterfield, Missouri. Whitaker was a resident at the long-term care unit at Friendship Village from March 4, 2002 until her death on June 24, 2003. As part of her nursing duties, Miller worked directly with Whitaker approximately eleven times prior to May 22, 2003. As one of Whitaker's nurses, Miller was aware of Whitaker's diagnoses and medications.

While at Friendship Village, Whitaker was treated for the following conditions: dementia, major depressive disorder, anxiety (severe at times), obsessive-compulsive disorder traits, periods of delirium, depression, acute respiratory failure, anemia, chronic obstructive pulmonary disease ("COPD"), pneumonia, and congestive heart failure. Whitaker took a number of medications for her mental and physical conditions.

In the final two months of Whitaker's life, she was hospitalized on two different occasions. Whitaker's first hospitalization took place from May 1 to May 14, 2003 for a breathing condition. Whitaker returned to Friendship Village on May 15, 2003 after which she was essentially bedridden. Whitaker's next hospitalization took place from June 16 to June 19, 2003 for respiratory failure. She returned to Friendship Village on June 20, 2003, and died four days later.

Between Whitaker's two hospitalizations, on May 22, 2003, Miller obtained a check in the amount of $15,000.00 written from Whitaker's account ("the check"). Whitaker signed the check, but Miller filled in all of the other parts of the check: the date of May 22, 2003, her own name in the "pay to" area, and the $15,000.00 amount in numbers and in writing. Miller also endorsed the back of the check and cashed the check.

Louise Behlman ("Behlman"), Whitaker's niece and power of attorney, discovered the check had been issued when she was going through Whitaker's papers after Whitaker's death.¹ On June 27, 2003, Behlman reported her discovery to Friendship Village because she believed the check was altered. On that same day, Friendship Village reported the situation to the Department. Peggy Post ("Post") of the Department conducted an investigation of the situation and called the police. The police also conducted an investigation,² and arranged for the $15,000.00 to be removed from Miller's account and returned to Whitaker's estate.

On January 26, 2004, the Department notified Miller that, because the results of its investigation tended to substantiate the conclusion that Miller misappropriated money from Whitaker, it intended to permanently place Miller's name on the EDL. On January 28, 2004, Miller completed an application for an administrative hearing, which was held by the Department on June 25, 2004. Subsequently, on August 16, 2004, the Department issued its decision ordering Miller's name to be permanently placed on the EDL because there was competent and substantial evidence that Miller misappropriated $15,000.00 from Whitaker. On September 10, 2004, Miller petitioned the trial court for judicial review of the Department's decision. On April 18, 2005, the trial court entered its judgment affirming the Department's decision. This appeal by Miller followed.

In her sole point on appeal, Miller contends the Department's decision ordering her name to be permanently placed on the EDL for misappropriating the check is not supported by competent and substantial evidence.

In our review of an administrative agency's decision, we review the findings and decision of the agency and not the judgment of the trial court. Lagud v. Kansas City Bd. of Police Com'rs, 136 S.W.3d 786, 791 (Mo.banc 2004). An agency's decision can be reviewed to determine if it is supported by competent and substantial evidence upon the whole record. Id., quoting section 536.140.2(3), RSMo 2000.³ An agency's decision is unsupported by competent and substantial evidence only in the rare case when the decision is contrary to the overwhelming weight of the evidence. Id., quoting Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo.banc 2003). While we defer to the agency's factual findings, where the agency's decision is based upon an interpretation, application or conclusion of law, we review the agency's decision de novo. Community Bancshares v. Secretary of State, 43 S.W.3d 821, 823 (Mo.banc 2001).

Section 198.090.15 provides that:

[t]he department shall maintain the employee disqualification list and place on the employee disqualification list the names of any persons who have been finally determined by the department, pursuant to section 660.315, RSMo, to have misappropriated any property or funds of a resident while employed in any facility. (emphasis added). Section 198.090.15.

"No person, corporation or association who received the employee disqualification list. . . shall knowingly employ any person who is on the employee disqualification list." Section 660.315.12 (amended 2003). Section 660.315.9 provides in relevant part that:

"[t]he length of time the person's name shall appear on the employee disqualification list shall be determined by the [Department], based upon the following: (1)[w]hether the person acted recklessly or knowingly . . .; (3)[t]he degree of misappropriation of the property or funds . . .; (5)[a]ny mitigating circumstances; [and] (6)[a]ny aggravating circumstances." Section 660.315.9 (amended 2003).

Because "misappropriate" is not expressly defined in the Missouri statutes and regulations governing the nursing home industry, the term is given its plain and ordinary meaning as found in the dictionary. Wells v. Dunn, 104 S.W.3d 792, 796 (Mo.App. W.D. 2003). Common to various dictionary definitions of the term "is the idea that misappropriation involves the dishonest diversion of the money or property of another to one's own use." Id. at 797.

A person who exerts undue influence uses dishonest motives to substitute his will for the will of another. Welch v. Welch, 354 Mo. 654, 190 S.W.2d 936, 938 (1945). Undue influence is influence amounting to overpersuasion, force, or coercion. Kramer v. Schramm, 59 S.W.3d 585, 585 (Mo.App. E.D. 2001), quoting Strauser v. Dayton, 762 S.W.2d 862, 865 (Mo.App. E.D. 1989). Coercion can be shown through evidence of the exploitation of another's special vulnerability. See State v. Garner, 103 S.W.3d 866, 870 (Mo. App. S.D. 2003), quoting People v. Knapp, 244 Mich.App. 361, 624 N.W.2d 227, 235 (2001).

In determining whether undue influence exists, we consider the following factors: "the extreme age of the [donor], his impaired physical condition, his mental debility, not necessarily amounting in complete incompetency, and the absence of competent and bona fide independent advice." Farnsworth v. Farnsworth, 728 S.W.2d 223, 227 (Mo.App. W.D. 1986). Another factor is whether the donee was active in some way which caused the execution of the instrument. See id. To establish undue influence, it is not necessary to establish the existence of a confidential relationship between the donor and the donee. Strauser, 762 S.W.2d at 865.

In this case, Miller admits that she appropriated funds⁴ from Whitaker.⁵ Thus, the only issue is whether there is competent and substantial evidence in the record that Miller's appropriation was dishonest.

The Department's decision did not make a specific finding as to whether Miller exercised undue influence over Whitaker in obtaining the check. However, the Department did make the following findings which suggest the existence of undue influence: (1) "[Miller] . . . dishonestly obtained a check written against the account of [Whitaker]," (2) "Whitaker was made vulnerable due to declining health and the influence of powerful medications," and (3) ...