White v. City of Ladue

422 S.W.3d 439, 2013 WL 6627961, 2013 Mo. App. LEXIS 1480
CourtMissouri Court of Appeals
DecidedDecember 17, 2013
DocketNo. ED 99585
StatusPublished
Cited by15 cases

This text of 422 S.W.3d 439 (White v. City of Ladue) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
White v. City of Ladue, 422 S.W.3d 439, 2013 WL 6627961, 2013 Mo. App. LEXIS 1480 (Mo. Ct. App. 2013).

Opinion

[443]*443 OPINION

ANGELA T. QUIGLESS, Judge.

I. INTRODUCTION

Appellant Larry White (“White”) appeals the judgment of the Circuit Court of St. Louis County in favor of Respondent City of Ladue (the “City”). In his nine points on appeal, White contends that the trial court erred in: (1) dismissing his public policy wrongful discharge claims in Counts I through III against the individual defendants; (2) prohibiting him from conducting discovery into communications regarding Form D0112 and sovereign immunity on the basis of attorney-client and insurer-insured privilege; (3) denying his second motion- for additional time to conduct discovery and supplement his response to the City’s second motion for summary judgment; (4) denying his motion to strike the City’s second motion for summary judgment; (5) granting summary judgment in favor of the City on his public policy wrongful discharge claims in Counts I through III on the basis of sovereign immunity; (6) granting summary judgment in favor of the City as to his Sunshine Law claim (Count IV); (7) denying his first motion for sanctions; (8) denying his amended third motion for sanctions; and (9) failing to order the City to produce certain documents relevant to his public policy wrongful discharge claims. For the reasons that follow, we disagree and affirm the judgment of the trial court.

II. FACTUAL AND PROCEDURAL BACKGROUND

In June 2007, the City hired White as its new chief of police. His employment was at will. On August 13, 2009, White was terminated as chief pursuant to the vote of the Ladue City Council. On September 18, 2009, and October 9, 2009, White made requests pursuant to the Sunshine Law for public records from the City. The City responded by requesting advance payments from White to produce the records, which included charges for attorney review time.

White made an additional Sunshine Law request for the City’s liability insurance policy. The City produced its policy of insurance, issued by the Travelers Insurance Companies, Inc. The policy included a Public Entity Employment Practices policy and Form G0615, limiting the City’s damages for torts to Missouri’s statutory caps. At this time the policy provided to White did not include a Missouri Governmental Immunity Endorsement or “Form D0112,” an endorsement preserving the City’s sovereign immunity despite its purchase of a policy of insurance.

On March 22, 2010, White filed a lawsuit against the City, its mayor and council. White’s petition alleged that he was discharged in violation of the public policy of the State of Missouri (Counts I through III). He further alleged that the City violated the Sunshine Law (Count IV).

On July 20, 2010, the trial court dismissed White’s wrongful discharge claims (Counts I through III) against the mayor and council because they were not White’s employer. White then filed an amended petition repeating his allegations against the City.

On March 9, 2011, the trial court issued an order requiring the City to produce “any monthly racial profiling reports in its possession for 2008-2009” by March 25, 2011. On March 25, 2011, the City represented to White that it had “no such documents in its possession,” and produced annual reports instead. Three months later, the City supplemented its production with several of the requested monthly reports (May-December 2009). The trial court ordered the City and Regional Justice Information Services (“REJIS”) to designate deponents to testify regarding the City’s records. At the July 7, 2011 deposition of [444]*444the City’s designee, the City produced monthly racial profiling reports to White, and the designee testified that these reports were received monthly by the City and stored electronically.

On August 16, 2011, White filed a motion seeking monetary sanctions for the City’s failure to comply with the part of the order requiring it to produce monthly racial profiling reports. On January 23, 2013, the court denied White’s first motion for sanctions.

On November 11, 2011, the City produced for the first time its 2009/2010 insurance policy that included Form D0112, the Missouri Governmental Immunity Endorsement applicable to the entire policy. On November 22, 2011, the City filed its second motion for summary judgment as to White’s public policy wrongful discharge claims (Counts I through III) solely on the basis of sovereign immunity. White requested additional time to conduct discovery related to the production of Form D0112. The motion was granted by the trial court.

White conducted discovery related to Form D0112. The City objected to White’s inquiry into communications among its attorney, the insurance broker and the insurance company’s claims handler about Form D0112/sovereign immunity on the basis of the attorney-client and insurer-insured privileges. The trial court ordered that written communications about Form D0112 be produced for in camera review. The Court held that the attorney-client and insurer-insured privileges applied and limited White’s inquiry about Form D0112 to the “timing of requests for and production of [Form D0112], as well as what efforts were made to look for said provision.”

White deposed the City’s attorney, insurance broker and third claims handler from Travelers Insurance, David Karames-sinis (“Karamessinis”). During the depositions related to Form D0112, White learned that the original Travelers claims handler at the time of his lawsuit was David Heim (“Heim”). In order to depose Heim, White filed his second motion for additional time to conduct discovery and supplement his response to the City’s second motion for summary judgment. White also filed a motion to strike the City’s second motion for summary judgment on the grounds that privileges asserted by the City were being used in a fundamentally unfair way. The trial court denied White’s motion to strike.

On April 11, 2012, the trial court entered its judgment granting the City’s second motion for summary judgment as to White’s public policy wrongful discharge claims on the basis of sovereign immunity, without ruling on White’s second motion for additional time. In granting summary judgment, the trial court found that White produced no evidence that the certified copy of the insurance policy produced in November, 2011, was not a true and accurate copy of the policy, and therefore, there was no genuine dispute of material fact.

On October 2, 2012, White filed his amended third motion for sanctions pursuant to Rule 61.01(d),1 seeking to recover over $140,000 in attorneys’ fees. The trial court held a hearing and entered judgment denying White’s motion because it did “not find the conduct of [defendant or its attorneys [rose] to the level appropriate to impose sanctions.”

Both parties moved for summary judgment on White’s Sunshine Law claim (Count IV). The trial court granted the City’s and denied White’s summary judgment motion. In entering judgment, the [445]*445court found, as a matter of first impression, that attorney review time is not included in the “research time” that public bodies may charge for pursuant to section 610.026.1(1),2 but held that the City’s violations were not purposeful or knowing. White appeals.

III. DISCUSSION3

A. Motion to Dismiss — Point I

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Bluebook (online)
422 S.W.3d 439, 2013 WL 6627961, 2013 Mo. App. LEXIS 1480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-city-of-ladue-moctapp-2013.