Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF NEWTON COUNTY Honorable James V.
E. SCOTT, J.
Missouri circuit court tried, convicted, and sentenced Dwight
Laughlin to 40 years in prison for burglarizing and damaging
a U.S. post office in Neosho. Seventeen years later, our
supreme court granted Laughlin's pro se
petition, voided his convictions, and discharged him because
"the United States ha[d] exclusive jurisdiction
to hear cases involving offenses committed on that federal
property." State ex rel. Laughlin v. Bowersox,
318 S.W.3d 695, 697 (Mo. banc 2010).
sued Appellants, his trial and appellate public defenders,
for negligently failing to assert that jurisdictional
challenge as he had asked them to do in
1993-95. Attorney Arthur Benson offered 56
transcript pages of trial testimony as an expert witness and
opined, consistent with the jury instructions and
Laughlin's claims, that Appellants had been negligent.
The jury agreed and rendered a $600, 000 verdict.
appeal, Appellants raise two points. The latter fails
summarily, so we take it first.
determine if Laughlin presented a submissible case, we must
ignore all conflicting evidence and inferences. Fleshner
v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 95 (Mo.
banc 2010). Appellants cite Fleshner for this rule,
but ignore it. Point 2 charges that "no evidence was
adduced in support of the essential element of
negligence," then cites only Appellants'
evidence that we must ignore, dooming the point ab
initio. Worse yet, Point 2's argument acknowledges
Benson's expert testimony of negligence, but asserts that
Appellants' evidence proves Benson wrong. "[I]n
seeing if any evidence supports a judgment, contrary proof is
irrelevant. And if evidence does support the judgment, no
amount of counter-proof erases it." Smith v. Great
American Assur. Co., 436 S.W.3d 700, 705 (Mo.App. 2014).
also urge that public defenders should enjoy official
immunity from malpractice claims. This is an open question,
as Appellants acknowledge, despite having come up in three
opinions by our Western District colleagues:
1. Johnson v. Schmidt, 719 S.W.2d 825 (Mo.App.
1986), dismissed a malpractice case as premature without
reaching the official-immunity issue (id. at 826),
noting also that "[i]f appellant had been successful in
his claim, then payment of those damages would have to be
made from the State Legal Defense Fund, § 105.711, RSMo
Supp.1984." Id. at 828.
2. Costa v. Allen, WD67378, 2008 WL 34735 (Mo.App.
Jan. 2, 2008), extensively surveyed other jurisdictions,
concluded that most did not recognize official immunity for
public defenders (id. at *3-*5), reached the same
result, and also observed that "Missouri does not have a
blanket statutory immunity for state employees but rather
provides financial protection for their acts under the State
Legal Expense Fund." Id. at *4 n.5. This
opinion was for naught after our supreme court took transfer
and ruled on other grounds without deciding the immunity
issue. Costa v. Allen, 274 S.W.3d 461, 463-64 &
n.4 (Mo. banc 2008).
3. Two years later, in Kuehne v. Hogan, 321 S.W.3d
337 (Mo.App. 2010), Judge Ellis separately opined that his
court's prior Costa opinion, although of no precedential
value, was in error (id. at 343-50 (Ellis, J., concurring)),
and that most jurisdictions grant public defenders some sort
of immunity “whether it be judicial immunity, statutory
immunity, official immunity, or some variation
thereof.” Id. at 344 (Ellis, J., concurring).
not found or been cited to a later Missouri case on this
issue. Before we address it anew, some further background is
courts have recognized the doctrine of official immunity for
more than 160 years. Southers v. City of Farmington,
263 S.W.3d 603, 610 (Mo. banc 2008)(citing Reed v.
Conway, 20 Mo. 22 (1854)). "This judicially-created
doctrine protects public employees from liability for alleged
acts of negligence committed during the course of their
official duties for the performance of discretionary
acts." Id. Official immunity is intended to
shield "individual government actors who, despite
limited resources and imperfect information, must exercise
judgment in the performance of their duties," and ...