461 S.W.3d 454
Mo. Ct. App.2015Background
- The Division investigated and found Aaron Birdsong, a high-school teacher/coach, committed sexual maltreatment of a 17-year-old student based on texts, a topless photo, kissing, and touching; CANRB affirmed and placed him on the central registry.
- Birdsong appealed to Cole County circuit court via a de novo petition; he admitted some facts but argued the conduct did not meet statutory/regulatory definitions of "child sexual abuse."
- The Division did not file a written response to Birdsong's summary-judgment motion; the trial court granted summary judgment for Birdsong, concluding the Division used non‑statutory definitions and that his conduct did not fit the statutory/regulatory definitions relied upon.
- After the judgment (but before finality), Birdsong moved for attorney's fees (about $34,452 claimed), arguing exceptions to the American Rule (including "special/unusual circumstances").
- The trial court awarded full attorney's fees, finding the Division knowingly applied improper internal definitions; the State appealed only the fee award.
- The Court of Appeals reversed and vacated the fee award, holding no statutory basis (§ 536.087) applied and no exception to the American Rule supported fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 536.087 authorizes fees for Birdsong’s prevailing in review of CANRB decision | Birdsong: fee statute applies to prevail in agency proceeding or civil action arising therefrom | State: CANRB review is not a "contested agency proceeding" under § 536.085 and thus § 536.087 does not apply | Held: § 536.087 does not apply because CANRB hearings are not contested agency proceedings; statutory waiver absent |
| Whether "special/unusual circumstances" justify fee award under the American Rule | Birdsong: Division's use of internal, non‑promulgated definitions was egregious and creates special circumstances | State: Conduct did not meet narrow, rare standard for unusual circumstances; Division's position was substantially justified | Held: No; facts/legal issues not novel or extremely complicated; no equitable basis to award fees |
| Whether the Division’s position was "substantially justified" | Birdsong: trial court’s findings show Division not justified | State: Division's investigatory actions and reliance on child‑welfare manual were substantially justified given victim’s age and facts | Held: Division’s position was substantially justified; incorrect position alone doesn’t prove lack of justification |
| Whether the "collateral litigation" exception covers DESE-related fees | Birdsong: fees related to DESE disciplinary action are recoverable as collateral litigation caused by Division finding | State: DESE action arose from Birdsong’s misconduct, not as a collateral consequence of the Division’s erroneous legal definition | Held: Not applicable; DESE action was direct consequence of Birdsong’s conduct, not a collateral suit caused by the Division’s breach |
Key Cases Cited
- Garland v. Ruhl, 455 S.W.3d 442 (Mo. banc 2015) (statutory waiver of sovereign immunity for attorney fees under § 536.087 is strictly construed)
- Lipic v. Missouri Dep’t of Social Servs., 93 S.W.3d 839 (Mo. App. E.D. 2002) (CANRB hearing is not an adversary contested agency proceeding under § 536.085)
- Goines v. Missouri Dep’t of Social Servs., 364 S.W.3d 684 (Mo. App. W.D. 2012) (same conclusion as Lipic regarding CANRB)
- Gerken v. Sherman, 351 S.W.3d 1 (Mo. App. W.D. 2011) (describing the limited "unusual circumstances" exception to the American Rule)
- Goralnik v. United Fire & Cas. Co., 240 S.W.3d 203 (Mo. App. E.D. 2007) (examples of when conduct may justify fee shifting absent statute)
- Essex Contracting, Inc. v. Jefferson Cnty., 277 S.W.3d 647 (Mo. banc 2009) (elements of collateral litigation exception for attorney's fees)