Solomon v. St. Louis Circuit Attorney
| Decision Date | 25 January 2022 |
| Docket Number | ED 109396 |
| Parties | John SOLOMON, Respondent, v. ST. LOUIS CIRCUIT ATTORNEY, Appellant. |
| Court | Missouri Court of Appeals |
FOR APPELLANT: David H. Luce, Zachary R. McMichael, 8182 Maryland Ave., 15th Floor, St. Louis, MO 63105.
FOR RESPONDENT: David E. Roland, P.O. Box 693, Mexico, MO 65265, Kimberly Hermann, Pro Hac Vice, Celia H. O'Leary, Pro Hac Vice, 560 West Crossville Rd., Ste. 104, Roswell, GA 30076.
The St. Louis Circuit Attorney ("Defendant") appeals the judgment denying its motion to set aside a default judgment entered in favor of John Solomon ("Plaintiff") on Plaintiff's amended petition alleging Defendant committed violations of chapter 610 of the Missouri Revised Statutes ("the Sunshine Law" or "Sunshine Law").1 The trial court's judgment denying Defendant's motion to set aside the default judgment ordered that, inter alia , (1) "Defendant shall produce to Plaintiff ... a list that identifies every document responsive to Plaintiff's Sunshine Law [r]equest";2 (2) "Defendant shall ... produce to the [c]ourt ... a copy of every document responsive to Plaintiff's Sunshine Law [r]equest as well as a copy of the foregoing list"; and (3) "Thereafter, the [trial] [c]ourt will conduct an in camera review of the records and assess Defendant's claims of privilege."
Defendant raises a total of three points on appeal. Defendant's first and second points claim the trial court improperly entered the underlying default judgment on Plaintiff's amended petition. Defendant's third point asserts the trial court erred in denying its motion to set aside the default judgment.
In addition, Plaintiff has filed a motion for attorney's fees on appeal, which has been taken with the case.
For the reasons discussed below, we hold that all of Defendant's points on appeal have no merit, and we grant Plaintiff's motion for attorney's fees on appeal. Accordingly, we affirm the trial court's judgment denying Defendant's motion to set aside the default judgment, and we remand the cause for further proceedings consistent with this opinion and the following specific directions. On remand, and in accordance with the trial court's judgment denying Defendant's motion to set aside the default judgment, (1) "Defendant shall produce to Plaintiff ... a list that identifies every document responsive to Plaintiff's Sunshine Law [r]equest"; (2) "Defendant shall ... produce to the [c]ourt ... a copy of every document responsive to Plaintiff's Sunshine Law [r]equest as well as a copy of the foregoing list"; and (3) "Thereafter, the [trial] [c]ourt [shall] conduct an in camera review of the records and assess Defendant's claims of privilege." See footnote 2 and Section I.E. of this opinion. Additionally, we direct the trial court on remand to determine the appropriate amount of attorney's fees on appeal to award Plaintiff and enter judgment accordingly.
The relevant facts and procedural posture of this case pertain to: (A) Plaintiff's request for open, public records under the Sunshine Law; (B) Plaintiff's initial petition against Defendant, Defendant's failure to timely respond, and the hearing on Plaintiff's written motion for default judgment on the initial petition; (C) Plaintiff's amended petition, Defendant's failure to timely respond, and the hearing on, inter alia , Plaintiff's oral motion for default judgment on the amended petition; (D) the trial court's interlocutory default judgment on Plaintiff's amended petition, and Defendant's motion to set aside the default judgment; and (E) the trial court's judgment denying Defendant's motion to set aside the default judgment.
On July 5, 2019, Plaintiff submitted to Defendant's office an open, public records request pursuant to the Sunshine Law seeking:
[A]ll records of contacts between Circuit Attorney Kimberly Gardner and her staff with the following individuals and entities from Jan. 6, 2017 through July 3, 2019: [ ] Scott Faughn[;] Al Watkins[;] Jeffrey E. Smith[;] JES Holdings LLC[;] Jeff Smith[;] The Missouri Workforce Housing Association[;] George Soros[;] Michael Vachon[;] Soros Fund Management[;] The Safety and Justice PAC[;] Open Society Foundation[;] Scott Simpson[;] Katrina Sneed[;] Phil Sneed[;] State Rep. Stacy Newman[;] [and] State Rep. Jay Barnes[.]
The scope of the inquiry included, but was not limited to, "all calendar entries, phone messages, text messages, emails, encrypted app chats, letter correspondence[,] and long-distance toll records in the possession of [Defendant's office]."
Defendant subsequently refused to produce any records pursuant to Plaintiff's Sunshine Law request. In denying Plaintiff's request, Defendant specifically claimed all of the requested records related to the two previous criminal cases against former Missouri Governor Eric Greitens. Defendant also maintained all of Plaintiff's requested records constituted either, (1) official records pertaining to the Greitens criminal cases which are closed under section 610.105.1 RSMo 20163 because the criminal cases were dismissed by nolle prosequi; or (2) "[ ] communication[s] between the Circuit Attorney and her attorneys and legal team working for her on legal matters[,]" which according to Defendant, "[are] both privileged and subject to work product regardless of whether the case or investigation is open or closed."
On January 10, 2020, Plaintiff filed his initial petition against Defendant alleging Defendant committed purposeful violations of the Sunshine Law by failing to search for and/or produce open, public records responsive to Plaintiff's request. Defendant was served with a summons, a copy of the initial petition, and all exhibits to the petition on February 19, 2020, when a deputy sheriff personally delivered the documents to Assistant Circuit Attorney Lopa Blumenthal ("Ms. Blumenthal") at Defendant's office in the City of St. Louis."4
Accordingly, Defendant was required to file a responsive pleading to the initial petition within thirty days after February 19, 2020, i.e., by March 20, 2020. See Missouri Supreme Court Rule 55.25(a) (2020). However, Defendant failed to file a timely responsive pleading to Plaintiff's initial petition.
On April 6, 2020, Plaintiff filed a motion for default judgment on the initial petition, and Plaintiff noticed the motion for a hearing to be held on June 5, 2020. After midnight on June 5 – the day of the scheduled hearing on Plaintiff's motion for default judgment on the initial petition and seventy-seven days after a responsive pleading was due on Plaintiff's initial petition – Defendant filed a motion to dismiss and a motion for leave to file the motion to dismiss out of time. Defendant did not notice either motion for a hearing, and Defendant did not request the trial court to rule on either motion.
The trial court held a hearing on Plaintiff's motion for default judgment on the initial petition on June 5, 2020. At the hearing, Plaintiff made an oral motion for leave to file an amended petition against Defendant. On June 5, the trial court entered an order denying Plaintiff's motion for default judgment on the initial petition; granting Plaintiff's motion for leave to file an amended petition by consent of Defendant; and requiring Defendant to file a responsive pleading to Plaintiff's amended petition "within thirty days of receipt" ( ).
On June 9, 2020, Plaintiff filed his amended petition against Defendant alleging Defendant committed purposeful violations of the Sunshine Law by failing to search for and/or produce open, public records responsive to Plaintiff's request. The amended petition requested the court to require Defendants to search for and produce such records; to award Plaintiff a civil penalty; and to award Plaintiff attorney's fees and costs of litigation.
It is undisputed Defendant received Plaintiff's amended petition on June 9, 2020.5 Accordingly, pursuant to the trial court's June 5, 2020 order, Defendant was required to file a responsive pleading to the amended petition within thirty days after June 9, 2020, i.e., by July 9, 2020. However, Defendant failed to file a timely responsive pleading to Plaintiff's amended petition.
On July 13, 2020, Plaintiff filed a motion for judgment on the pleadings on his amended petition. Then, on July 15 – six days after a responsive pleading was due on Plaintiff's amended petition – Defendant filed a motion to dismiss Plaintiff's amended petition that was substantively identical to the motion to dismiss Defendant had filed on June 5. Notably, Defendant's July 15 motion to dismiss was not accompanied by a written motion for leave to file it out of time, Defendant did not notice the motion to dismiss for a hearing, and Defendant did not request the trial court to rule on the motion to dismiss.
On July 15, Plaintiff filed a motion to strike Defendant's motion to dismiss the amended petition, and Plaintiff later noticed the motion for strike for a hearing to be held on July 28, 2020.
At the July 28 hearing, Plaintiff withdrew his motion for judgment on the pleadings. Plaintiff also made an oral motion asserting he was entitled to a default judgment on his amended petition, which the trial court granted. Although Plaintiff characterized his oral motion as a motion "to reconsider" his previous motion for default judgment filed on Plaintiff's initial petition, the trial court characterized Plaintiff's oral motion as, inter alia...
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