State ex rel. Boshers v. Dotson, 19075

• Decision Date: 05 July 1994
• Docket Number: No. 19075,19075
• Citation: 879 S.W.2d 730
• Parties: STATE of Missouri, ex rel. Donna Faye BOSHERS, Plaintiff-Appellant, v. Robert DOTSON, Sheriff of Laclede County, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 730

879 S.W.2d 730

STATE of Missouri, ex rel. Donna Faye BOSHERS, Plaintiff-Appellant, v. Robert DOTSON, Sheriff of Laclede County, Defendant-Respondent.

No. 19075.

Missouri Court of Appeals,

Southern District

Division Two.

July 5, 1994.

Richard L. Anderson, Kimberling City, for plaintiff-appellant.

Craig A. Smith, Jeffrey L. Groves, Daniel, Clampett, Lilley, Dalton, Powell & Cunningham, Springfield, for defendant-respondent.

GARRISON, Judge.

Plaintiff filed suit against Defendant, the Sheriff of Laclede County, Missouri, alleging that she was damaged when he conducted a search and arrested her on October 4, 1989. This appeal is from a summary judgment entered in favor of Defendant on the theory that he was protected by "official immunity."

The record indicates that during the search which is the subject of this suit, Defendant and other officers seized 38 dogs (25 of which were inside the residence), 23 horses, 33 chickens, 3 calves, 3 ducks, 3 geese, 1 cat, and 1 goat which were allegedly abused or neglected. In her suit, Plaintiff alleged that Defendant acted intentionally and unlawfully in arresting her and in searching the premises. Defendant, in his motion for summary judgment, contended that Plaintiff's suit arose from the execution of a search warrant, which is a discretionary function, and that because of the doctrine of official immunity he was entitled to a judgment as a matter of law.

The doctrine of official immunity applies to protect public officials from an action for damages arising from their discretionary acts or omissions while acting within the scope of their authority. State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 444 (Mo. banc 1986). Execution of a search warrant is one of the discretionary acts to which the doctrine applies. DaVee v. Mathis, 812 S.W.2d 816, 827 (Mo.App.W.D.1991). Discretionary acts performed maliciously, willfully, corruptly and in bad faith are not protected, however. State ex. rel Twiehaus v. Adolf, 706 S.W.2d at 446; Boyer v. Tilzer, 831 S.W.2d 695, 698 (Mo.App.E.D.1992).

A summary judgment is reviewed in the same manner as a court-tried or equity proceeding and must be affirmed if, as a matter of law, the judgment is sustainable on any theory. Chase Resorts, Inc. v. Safety Mutual Casualty Corp., 869 S.W.2d 145, 148 (Mo.App.E.D.1993); McCready v. Southard, 671 S.W.2d 385, 387 (Mo.App.S.D.1984). We are to review the record, however, in the light most favorable to the party against whom the judgment was entered and accord that party the benefit of all reasonable inferences. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). Our review is one which is essentially de novo by which we are to employ the same criteria in testing the propriety of the summary judgment as those to be employed by the trial court. Id. The propriety of a summary judgment is purely an issue of law founded on the record submitted. Id.

When the party requesting a summary judgment has met the burden imposed by Rule 74.04 ¹ to establish a right to a judgment as a matter of law because of the lack of a genuine issue as to the material facts, the burden then shifts to the non-moving party to demonstrate that one or more of the material facts are genuinely disputed. See ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d at 381; Andes v. Albano, 853 S.W.2d 936, 940 (Mo. banc 1993).

In her first point relied on, Plaintiff alleges that the court erred in entering the summary judgment because her response to Defendant's motion, with accompanying exhibits, and her pleadings established that there were genuine issues of fact for resolution "with regard to the validity of the search warrant, as well as improper motive and conduct during its execution." The question for decision on appeal is that which is stated in the point relied on. Matter of Trust of McDonald, 858 S.W.2d 271, 280 (Mo.App.S.D.1993). Plaintiff's point is, therefore, based upon the effect of her pleadings and response to the motion for summary judgment in demonstrating the existence of a genuine issue concerning a material fact as opposed to the sufficiency of the motion, in the first instance, to demonstrate entitlement to a judgment as a matter of law.

Defendant's motion for summary judgment was based on the theory that the suit arose from the execution of a search warrant which was a discretionary function protected by official immunity. After Defendant made a showing that there was no genuine issue as to material facts and that he was entitled to a judgment as a matter of law, Plaintiff, in order to demonstrate the existence of a genuine issue and thereby prevent a summary judgment, was required to show that one or more of the material facts shown by Defendant to be above any genuine dispute was, in fact, genuinely disputed. ITT Commercial Finance v. Mid-Am Marine, 854 S.W.2d at 381. In the instant case, Plaintiff contends that there was a genuine issue as to the validity of the search warrant and Defendant's intent or malice in connection with the search and arrest.

Defendant did not, in conjunction with his motion for summary judgment, file a copy of the warrant. Rather, he filed, in support of his motion, an affidavit signed by him as Sheriff of Laclede County by which he requested a search warrant, his application for a search warrant, and a press release from the Laclede County Sheriff's Department stating that "deputies of the Laclede County Sheriff's Department and officials from the Missouri Humane Society executed a search warrant at the Bosher [sic] farm in Laclede County, Missouri, seizing over 100 abused and neglected animals, according to Laclede County Sheriff Bob Dotson." ² Plaintiff alleged in her petition, however, that Defendant displayed what purported to be a search warrant "duly executed and issued by the Associate Circuit Court of Laclede County, Missouri." ³ A non-moving party's admissions in pleadings may be considered in determining the propriety of a summary judgment. Rule 74.04(c); Easy Living Mobile, Inc. v. Eureka Fire Pro. Dist., 513 S.W.2d 736, 738 (Mo.App.E.D.1974).

Contrary to Plaintiff's assertion on this appeal, Defendant's entitlement to a judgment as a matter of law based on official immunity was not necessarily defeated by a showing that there was an issue about the actual validity of the warrant. Defendant was entitled to a presumption of validity created by a warrant which was, on its face, valid. Rustici v. Weidemeyer, 673 S.W.2d 762, 769 (Mo. banc 1984). If the warrant was valid on its face, as Plaintiff in effect pleaded, she could, however, defeat the summary judgment by showing the existence of a genuine issue concerning Defendant's knowledge about its alleged invalidity. See Boyer v. Tilzer, 831 S.W.2d at 697-98.

In response to the motion for summary judgment, Plaintiff filed suggestions with attached exhibits. The exhibits consisted of copies of several letters from an attorney representing Plaintiff in the pending criminal case to the Clerk of the Associate Circuit Court of Laclede County and the prosecutor requesting copies of the search warrant. Also attached were copies of three search warrants which the attorney had obtained. All three of the search warrants were dated the day before the search, authorized a search of Plainti...