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Laughlin v. Perry

Court of Appeals of Missouri, Southern District, Second Division

June 10, 2019

DWIGHT LAUGHLIN, Respondent,
v.
DEWAYNE PERRY, and ELLEN FLOTTMAN, Appellants.

          APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY Honorable James V. Nichols, Judge.

          DANIEL E. SCOTT, J.

         A 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).

         Laughlin 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.[1] 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.

         On appeal, Appellants raise two points. The latter fails summarily, so we take it first.

         Submissibility

         To 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). Point denied.

         Official Immunity

         Appellants 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).

         We have not found or been cited to a later Missouri case on this issue. Before we address it anew, some further background is in order.

         Missouri 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 ...


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