Ryno v. Hillman
| Decision Date | 27 January 2022 |
| Docket Number | SD 36889 |
| Citation | 641 S.W.3d 385 |
| Parties | Dennis R. RYNO, Appellant, v. Kevin S. HILLMAN, Respondent. |
| Court | Missouri Court of Appeals |
Appellant's attorney: Daniel R. Schramm, Chesterfield.
Respondent's attorney: Katherine A. Thompson, Springfield.
The trial court's judgment dismissed all counts in the First Amended Petition (the "petition") filed by Dennis R. Ryno ("Ryno") against Kevin S. Hillman ("Hillman"), who was the elected prosecuting attorney of Pulaski County.1 The gravamen of the petition was that Hillman made unauthorized disclosures of closed law enforcement records (including privileged records) in violation of section 610.120 to the Department of the Army in the course of the Army's administrative investigation and termination of Ryno's federal employment.2 The petition contained eight counts seeking damages as well as declaratory and injunctive relief. The trial court's dismissals were based on numerous grounds, each in effect a failure to state a claim upon which relief could be granted.
Ryno appeals, raising ten points relied on. In his points, Ryno does not challenge the trial court's dismissal of (1) Counts VII and VIII, which sought declaratory and injunctive relief, or (2) his other claims for injunctive relief in the prayers of the other counts. Rather, Ryno challenges only the trial court's dismissal of his claims for damages in Counts I-VI.
Siebert v. Peoples Bank , 632 S.W.3d 461, 466 (Mo. App. 2021).
For ease of analysis, we consider Ryno's points out of order and turn first to Ryno's second point relied on. In that point, Ryno contends that the allegations in his petition state a claim for an "implied" right to damages for Hillman's "per se " violation of section 610.120 and argues that the trial court erred because it "misapplied the law" in concluding that disclosure of closed records "in violation of section 610.120" did not "give rise to a private cause of action." The trial court was correct.
Id . at 258. The Cox court then proceeded to conclude:
Instead, a more appropriate reading of these sections of the Sunshine Law is that section 610.027 does not provide a remedy for violations of section 610.150 or 610.100.2. This interpretation is bolstered by looking to section 610.100.8[3 ] which provides specific penalties for the improper disclosure of some records. Subsection 8 states that any person who requests and receives a mobile video recording pursuant to section 610.100 is prohibited from displaying or disclosing the recording or any description or account thereof and expressly states that "[a]ny person who fails to comply with the provisions of this subsection is subject to damages in a civil action proceeding." "It is well settled, in interpreting a statute, that the legislature is presumed to have acted intentionally when it includes language in one section of a statute, but omits it from another." Denbow v. State , 309 S.W.3d 831, 835 (Mo. App. W.D. 2010) (quoting State v. Bass , 81 S.W.3d 595, 604 (Mo. App. W.D. 2002) ). By expressly including the right to civil damages for the improper disclosure of closed records in subsection 610.100.8 but not 610.100.2, the legislature signaled an intent to not provide for civil damages for a violation of subsection 2 of the same section. This principle of statutory interpretation also applies to section 610.150 which similarly lacks any specific authorization for civil damages for the improper disclosure of an otherwise closed record.
Id .
The same principle of statutory interpretation also applies to section 610.120, RSMo Cum.Supp. 2003 and 2014, which does not expressly or specifically authorize a private cause of action for damages. See also Fierstein v. DePaul Health Center , 949 S.W.2d 90, 93 (Mo. App. 1997) ().
Our conclusion that section 610.120 does not authorize a private cause of action for damages is further buttressed by section 610.115, RSMo 2000, which provides that "[a] person who knowingly violates any provision of section 610.100, 610.105, 610.106, or 610.120 is guilty of a class A misdemeanor." A "statute which creates a criminal offense and provides a penalty for its violation, will not be construed as creating a new civil cause of action independently of the common law, unless such appears by express terms or by clear implication to have been the legislative intent." Christy v. Petrus , 365 Mo. 1187, 295 S.W.2d 122, 126 (Mo. banc 1956) ; see also Zeller v. Scafe , 498 S.W.3d 846, 853-55 (Mo. App. 2016) (); and Otte v. Edwards , 370 S.W.3d 898, 903 (Mo. App. 2012) (" ‘In the absence of any indication of intent [to create a civil cause of action based on a misdemeanor], we are "constrained to assume that had the legislature desired to provide for enforcement ... by civil action, as well as by criminal prosecution, such a provision would have been incorporated therein." ’
Lafferty [v. Rhudy] , 878 S.W.2d [833,] 835 [(Mo. App. 1994)], quoting Christy , 295 S.W.2d at 126."); cf. Johnson v. Kraft General Foods , 885 S.W.2d 334, 336 (Mo. banc 1994) . As applicable here, the express terms of section 610.120 do not support a legislative intent to create a private cause of action for damages, and Ryno does not direct us to, and we are not independently aware of, any evidence that clearly implies a legislative intent to do so.
Ryno urges us to treat section 610.120 as a public safety statute that creates a statutory duty or standard of care to which a reasonable person must conform his conduct. "We recognize that a civil claim for relief may be based upon a criminal statute if the person injured by the violation of the statute is a member of the class the statute was enacted to protect, and if the purpose of the statute is to protect or promote public safety." Otte , 370 S.W.3d at 902.
In the context of a statute that provided a "licensee acting as a seller's or landlord's agent ... shall disclose to any customer all adverse material facts...
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