author: ZEL M. FISCHER, Judge.

text:
    STATE ex rel. Bobbie Jean PROCTOR and Vincent Proctor, Relators, v. The Honorable Edith L. MESSINA, Circuit Judge, Sixteenth Judicial Circuit, Jackson County, Missouri, Respondent.
    No. SC 90610.
    Supreme Court of Missouri, En Banc.
    Aug. 31, 2010.

      Hans H. van Zanten and Michael T. Yonke, Yonke & Pottenger LLC, Kansas City, for relators.
    Sean T. McGrevey and Scott M. Adam, Adam & McDonald PA, and Jana V. Richards and Maureen M. Brady, Sanders, Conkright & Warren LLP, Overland Park, Kansas City, for Health Care defendants/respondents.
    Harvey M. Tettlebaum and Robert L. Hess II, Husch Blackwell LLP, Jefferson City, for the American College of Radiology, Missouri Radiological Society, Missouri Dental Association, Missouri Healthcare Association and Delmar Gardens North Operating LLC, which filed briefs as friends of the Court.
    Robert W. Cotter and Matthew W. Geary, Dysart, Taylor, Lay, Cotter & McMonigle PC, Kansas City, for the Missouri Organization of Defense Lawyers, which filed a brief as a friend of the Court.
    R. Kent Sellers, Lathrop & Gage LLP, Kansas City, for the Missouri Hospital Association, which filed a brief as a friend of the Court.
    Leland F. Dempsey and Ashley F. Baird, Dempsey & Kingsland PC, Kansas City, for the Missouri Association of Trial Attorneys, which filed a brief as a friend of the Court.
   ZEL M. FISCHER, Judge.

Bobbie Jean and Vincent Proctor seek a writ to prohibit the Circuit Court of Jackson County (trial court) from enforcing its purported discovery order in the pending civil case of Bobbie Jean Proctor & Vincent Proctor v. Kansas City Heart Group, P.C., Timothy L. Blackburn, M.D., & St. Joseph Medical Center, Case No. 0816-CV24576. In the case below, the trial court issued a purported formal discovery order advising non-parties that the trial court believed it was permissible for these non-party medical providers to engage in informal ex parte communications with attorneys for the defendant in the underlying cause. The court of appeals issued a preliminary writ to examine the extent to which the federal Health Insurance Portability and Accountability Act of 1996, Pub.L. No. 104-191, 110 Stat.1936 (HI-PAA), preempted Missouri law on the issue of ex parte communications in informal discovery and also to re-examine the State of Missouri’s law on this topic. By opinion, the court of appeals made the preliminary writ absolute, and this Court granted transfer.

Facts

Bobbie Jean and Vincent Proctor filed a petition for damages for personal injuries against Kansas City Heart Group, P.C., Timothy L. Blackburn, M.D., and St. Joseph Medical Center. In their petition, the plaintiffs alleged that Bobbie Jean suffered damages arising out of the defendants’ medical negligence during her surgery in March 2004.

On January 28, 2009, Blackburn and Kansas City Heart Group, P.C., filed a motion in which they sought a formal order from the court specifically authorizing informal ex parte communications with Bobbie Jean’s treating physicians and other health care providers. On February 24, 2009, St. Joseph Medical Center filed a similar motion. The trial court heard oral arguments on June 11, 2009. On July 17, 2009, the trial court issued its purported formal order sustaining the motions and “authorized” non-party medical providers of Bobbie Jean Proctor to engage in informal ex parte communications with attorneys representing defendant medical providers, although the purported “order” specifically advises any of plaintiffs’ medical providers presented with the purported “order” that they are free to ignore the purported “order” as it relates to ex parte communications with the parties and their attorneys if they have not received authorization from their patient to engage in such ex parte communications. The order did not limit the scope of disclosures to matters that would be calculated to lead to admissible evidence. The plaintiffs filed a motion seeking a writ of prohibition.

“Prohibition is a discretionary writ that only issues to prevent an abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of extra-jurisdictional power.” State ex rel. Marianist Province of the U.S. v. Ross, 258 S.W.3d 809, 810 (Mo. banc 2008).

Preemption

In State ex. rel Collins v. Roldan, 289 S.W.3d 780, 783 (Mo.App.2009), the court noted that pursuant to the Supremacy Clause of the United States Constitution, HIPAA may preempt Missouri law on the issue of ex parte communications between an attorney and a treating physician. The court did not examine or decide the issue because the case was decided on other grounds. Id. at 784 n. 6. The issue of whether or not HIPAA preempts Missouri law is an issue of first impression in Missouri courts.

The Supremacy Clause of the United States Constitution states that federal law “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. CONST, art. VI, cl. 2. Under this clause, state laws that conflict with federal laws are preempted and have no effect. Connelly v. Iolab Corp., 927 S.W.2d 848, 851 (Mo. banc 1996) (internal citations omitted). The United States Supreme Court has cautioned that in the interest of preventing federal encroachment on the state’s authority, a court interpreting a federal statute pertaining to areas traditionally controlled by state law should be reluctant to find preemption. CSX Tramp., Inc. v. Easterwood, 507 U.S. 658, 664, 118 S.Ct. 1732, 123 L.Ed.2d 387 (1993). Thus, the United States Supreme Court has held that a federal law will preempt state law only when it is the clear and manifest purpose of Congress to do so. Id. To determine if Congress intended to preempt state law, the court must examine the text and structure of the federal law. Id.

Congress included an express preemption clause in HIPAA. See 42 U.S.C.A. § 1320d-7(a). Because HIPAA contains an express preemption clause, this Court’s task is to construe the plain language of the statute to determine the extent to which Congress intended for HI-PAA to preempt state law. CSX Transp., 507 U.S. at 664, 113 S.Ct. 1732.

HIPAA’s preemption clause is contained in 42 U.S.C.A. § 1320d-7, which states:

(1) General rule
Except as provided in paragraph (2), a provision or requirement under this part, or a standard or implementation specification adopted or established under sections 1320d-l through 1320d-3 of this title, shall supersede any contrary provision of State law, including a provision of State law that requires medical or health plan records (including billing information) to be maintained or transmitted in written rather than electronic form.
(2) Exceptions
A provision or requirement under this part, or a standard or implementation specification adopted or established under sections 1320d-l through 1320d-3 of this title, shall not supersede a contrary provision of State law, if the provision of State law—
(A) is a provision the Secretary determines—
(!) is necessary-—
(I) to prevent fraud and abuse;
(II) to ensure appropriate State regulation of insurance and health plans;
(III) for State reporting on health care delivery or costs; or
(IV) for other purposes; or
(ii) addresses controlled substances[.]

Pursuant to the authority granted to it under HIPAA, 42 U.S.C.A. § 1320d-2(d)(2)(A), the Secretary of the Department of Health and Human Services (the Secretary) promulgated a federal regulation on HIPAA’s preemptive effect. This regulation is similar to HIPAA’s statutory language and states that “[a] standard, requirement, or implementation specification adopted under this subchapter that is contrary to a provision of State law preempts the provision of State law.” 45 C.F.R. § 160.203 (emphasis added). The regulations define “State law” as “a constitution, statute, regulation, rule, common law, or other State action having the force and effect of law.” 45 C.F.R. § 160.202. 45 C.F.R. § 160.203 also provides exceptions to this general rule and states that HIPAA will not preempt state law when, among other things, the state law is more stringent:

A standard, requirement, or implementation specification adopted under this subchapter that is contrary to a provision of State law preempts the provision of State law. This general rule applies, except if one or more of the following conditions is met:
(b) The provision of State law relates to the privacy of individually identifiable health information and is more stringent than a standard, requirement, or implementation specification adopted under subpart E of part 164 of this subchapter.

HIPAA’s language states that “a provision or requirement under this part, or a standard or implementation specification adopted or established under sections 1320d-l through 1320d-3 of this title, shall supersede any contrary provision of State law[.]” 42 U.S.C.A. § 1320d-7(a)(l). The Secretary has stated that, to engage in a preemption analysis, a court must first isolate a specific provision of HIPAA and compare that provision with its analogous state provision:

The initial question that arises in the preemption analysis is, what does one compare? The statute directs this analysis by requiring the comparison of a “provision of State law [that] imposes requirements, standards, or implementation[ ] specifications” with “the requirements, standards, or implementation specifications imposed under” the federal regulation. The statute thus appears to contemplate that what will be compared are the State and federal requirements that are analogous, i.e., that address the same subject matter.

Department of Human Health and Services, Standards for Privacy of Individually Identifiable Health Information, 64 Fed. Reg. 59918, 59995 (Nov. 3, 1999). The Secretary also recognizes that, even if HI-PAA preempts one provision of state law, the rest of the state’s laws relating to the privacy of an individual’s health information would remain enforceable:

It is recognized that States generally have laws that relate to the privacy of individually identifiable health information. These laws continue to be enforceable, unless they are contrary to part C of title XI or the standards, requirements, or implementation specifications adopted or established pursuant to the proposed subpart x.

Id.

The issue for this Court engaging in HIPAA preemption analysis, therefore, is not whether or not HIPAA, as a general matter, is contrary to and more stringent than the entirety of a state’s laws on the privacy of a patient’s medical information. Rather, the issue is whether or not a specific provision of HIPAA is contrary to and more stringent than a specific provision of state law. See also Beverly Cohen, Reconciling the HIPAA Privacy Rules with State Laws Regulating ex parte Interviews of Plaintiffs’ Treating Physicians: A Guide to Performing HIPAA Preemption Analysis, 43 Hous. L.Rev. 1091, 1133 (Winter 2006) (stating that most courts err in performing HIPAA preemption analysis because they fail to isolate specific provisions and instead attempt to determine whether or not the entire state statutory scheme is contrary to the entirety of HI-PAA).

Under the plain and ordinary language of HIPAA’s preemption clause, to engage in a preemption analysis, this Court must first identify the specific provision of HI-PAA that conflicts with any provision of Missouri’s law on ex parte communications between attorneys and physicians to determine whether or not any provision of Missouri’s law on such ex parte communications is contrary to any provision of HI-PAA’s and, if so, whether or not it is more or less stringent than HIPAA’s provision.

HIPAA Generally

This Court’s examination of HIPAA’s privacy rule reviews the text of the regulations mindful of the intent of Congress in directing the Secretary to issue rules and regulations to implement the HIPAA privacy rule.- In HIPAA, Congress directed the Secretary to promulgate rules and regulations designed to ensure the privacy of patients’ medical information. 42 U.S.C.A. § 1320d — 2(d)(2)(A); see also Crenshaw v. MONY Life Ins. Co., 318 F.Supp.2d 1015, 1028 (S.D.Cal.2004); Moreland v. Austin, 284 Ga. 730, 670 S.E.2d 68, 70 (2008) (HIPAA’s goal is to protect a patient’s health information). With the overriding governing principle of patient privacy, the Secretary did, in fact, create regulations prohibiting health care providers from disclosing “protected health information,” whether “oral or recorded in any form or medium,” unless medical providers comply with a narrow list of exceptions separately itemized by the Secretary elsewhere in the Secretary’s regulatory scheme. The HIPAA regulations draw no distinction between formal versus informal disclosures and, instead, broadly prohibit all disclosures in the absence of a specifically enumerated exception to this general rule of prohibition.

Specifically, the Secretary defined protected “health information” as:

[AJny information, whether oral or recorded in any form or medium, that:
(1) Is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and
(2) Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual.

45 C.F.R. § 160.103 (emphasis added). This federal regulation’s use of the term oral communication clearly includes ex parte “oral” communications with a physician; likewise, it encompasses health information that is part of a written medical record or the physician’s memory of his treatment of the patient. By its text, HI-PAA promotes a renewed awareness of, or emphasis upon, the principle of patient privacy. Further, by its text, HIPAA prohibits physicians from engaging in an ex parte oral disclosure of a patient’s protected health information unless an express exception applies.

Missouri Law on the Issue of ex parte Communications

Missouri common law historically provides that a litigant patient in a personal injury lawsuit could not be compelled by court order to sign medical authorizations consenting to ex parte communications with treating physicians. State ex rel. Woytus v. Ryan, 776 S.W.2d 389, 395 (Mo. banc 1989). In Woytus, this Court expressed numerous policy statements that mirror the privacy policies of HIPAA, and it is worth noting a number of these statements in analyzing the relationship of HI-PAA, Missouri law, and the case presently before us. For illustrative purposes:

Although the patient is deemed to have waived the statutory privilege with regard to certain information, the ongoing confidential and fiduciary relationship between physician and patient continues to require protection from conduct that might jeopardize the sanctity of that relationship.... “A physician occupies a position of trust and confidence as regards his patient — a fiduciary position. It is his duty to act with the utmost good faith. This duty of the physician flows from the relationship with his patient and is fixed by law....”

Id. at 393 (citation omitted). The Court refused to compel a patient to sign a medical authorization order consenting to ex parte communications because “the [Missouri Rules of Court] do not expressly forbid ex parte discussion, [or] expressly authorize such discussion as a method of discovery.” Id. at 392. This Court refused to add a non-enumerated discovery method to the rules because of the potential risks to the physician-patient privilege:

[T]his Court will not require that a non-enumerated discovery method be added to those already available under the [Missouri Rules of Court], Information or evidence that can be obtained legitimately through ex parte discussion [with treating physicians] can also be obtained through the methods of discovery listed in the [Missouri Rules of Court]. Any burdens caused defendants by being restricted to the specially enumerated discovery procedures are outweighed by the potential risks to the physician-patient relationship in deviating from those procedures.

Id. at 395. These risks include the possibility (or, some would argue, probability) that:

An unauthorized ex parte interview could disintegrate into a discussion of the impact of a jury’s award upon a physician’s professional reputation, the rising cost of malpractice insurance premiums, the notion that the treating physician might be the next person to be sued, and other topics which might influence the treating physician’s views.

Id.

Subsequently, this Court issued a pair of companion opinions addressing voluntary and informal ex parte communications between plaintiffs treating physician and defendant or defendant’s representatives in a medical malpractice case. Brandt v. Pelican, 856 S.W.2d 658 (Mo. banc 1993) (Brandt I); Brandt v. Med. Def. Assocs., 856 S.W.2d 667 (Mo. banc 1993) (Brandt II).

In Brandt I, the issue presented was whether voluntary and informal ex parte communications between defense counsel and plaintiffs treating physician (without plaintiffs consent) were prohibited during the discovery period of litigation. 856 S.W.2d at 661. The Court focused on Missouri’s physician-patient testimonial privilege statute, § 491.060(5), RSMo Supp. 1992, and answered the question by concluding that there was nothing in this statute that expressly prohibited informal and voluntary ex parte communications with plaintiffs physician. Id. Lacking a statutory or common law testimonial preclusion for this informal discovery measure, this Court refused to sanction the defendant for the voluntary and informal ex parte communication with the plaintiffs treating physician. Id. at 662. Notably, though, this Court reaffirmed its previous holding in Woytus that a plaintiff cannot be compelled to execute a medical authorization authorizing his treating physicians to engage in ex parte communications with the defendant nor could plaintiffs treating physician be compelled to engage in informal ex parte discussions with the defense. Id. Likewise, this Court commented that it was correct to observe that “Woytus ‘shows a judicial philosophy that discourages ex parte conversations with plaintiffs doctor.’ ” Id. at 661 (citation omitted).

In Brandt II, this Court’s starting point of discussion was a reminder that, in Brandt I, the Court had concluded that there was no statutory basis in Missouri for concluding that voluntary ex parte communications between defense counsel and plaintiffs treating physician were prohibited. 856 S.W.2d at 669. With no statutory basis to prohibit Missouri personal injury litigants from engaging in informal discovery via ex parte voluntary discussion with plaintiffs treating physicians, this Court in Brandt II shifted its analysis to whether such voluntary ex parte communications by the plaintiffs treating physician violated the physician’s common law fiduciary duty of confidentiality. Id. This Court decided the case based upon the doctrine of waiver, concluding that once a patient/physician privilege waiver occurs in the filing of a personal injury lawsuit in which the plaintiffs medical condition is placed at issue, the plaintiff has waived both the physician’s testimonial privilege and the physician’s fiduciary duty of confidentiality, including voluntary ex parte conferences with the plaintiffs treating physician within the limited scope of the waiver. Id. at 674. Notably, though, this Court in Brandt II reiterated its warning in Brandt I that nothing in either of these opinions is designed to create any right to compel the plaintiff or his treating physicians to authorize, or participate in, such ex parte communications. Id. at 674-75.

Treating Physicians Comply with HI-PAA and Missouri Law

Subsequent to Brandt I and Brandt II, Congress passed HIPAA. Although Missouri’s statutory law and this Court’s rules of discovery on the topic of the physician testimonial privilege has remained silent on the issue of voluntary ex parte communications with a litigant patient’s treating physician, HIPAA is not silent. HIPAA’s general rule is that ex parte communications with a litigant patient’s physician are prohibited. Absent an exception to this general rule in the enumerated exceptions outlined in HIPAA, HIPAA plainly prohibits such communications.

As this Court noted above, to determine if HIPAA preempts state law, this Court must determine whether or not HIPAA’s prohibition of the oral disclosure of plaintiffs protected health information by one or more of plaintiffs treating physicians, absent authorization by plaintiff, preempts Missouri law that fails to prohibit such ex parte disclosures. Pursuant to HIPAA’s regulations:

Contrary, when used to compare a provision of State law to a standard, requirement, or implementation specification adopted under this subchapter, means:
(1) A covered entity would find it impossible to comply with both the State and federal requirements; or
(2) The provision of State law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of part C of title XI of the Act or section 264 of Pub.L. 104-191 ... as applicable.

45 C.F.R. § 160.202.

Missouri courts are bound to follow HI-PAA’s statutory and regulatory mandate, but HIPAA does not preempt Missouri law on this particular issue. As this Court noted above, in Brandt I, this Court did not affirmatively create a right for attorneys to engage in voluntary and informal ex parte communication with plaintiffs physician. Instead, this Court merely confirmed that, at that time, there was no state or federal law that prohibited such informal communications with plaintiffs physicians. Brandt I, 856 S.W.2d at 663. In other words, the holding was that in the absence of a statutory prohibition — either state or federal — it would not prohibit ex parte communications between an attorney and a physician.

Application of HIPAA’s Enumerated Exceptions Prohibition of ex parte Communications

HIPAA’s regulation that prohibits the unauthorized disclosure of a patient’s protected health information, however, does include enumerated exceptions to the ban:

(1) Permitted uses and disclosures. A covered entity is permitted to use or disclose protected health information as follows:
(i) To the individual;
(ii) For treatment, payment, or health care operations, as permitted by and in compliance with § 164.506;
(iii) Incident to a use or disclosure otherwise permitted or required by this subpart, provided that the covered entity has complied -with the applicable requirements of § 164.502(b), § 164.514(d), and § 164.530(c) with respect to such otherwise permitted or required use or disclosure;
(iv) Pursuant to and in compliance with a valid authorization under § 164.508;
(v) Pursuant to an agreement under, or as otherwise permitted by, § 164.510; and
(vi) As permitted by and in compliance with this section, § 164.512, or § 164.514(e), (f), or (g).

45 C.F.R. § 164.502(a) (emphasis added). For example, under 45 C.F.R. § 164.502(a), HIPAA permits ex parte communications between a physician and a third party when the patient expressly authorizes the ex parte communications by issuing a valid authorization pursuant to 45 C.F.R. § 164.508(a)(1), which says:

Except as otherwise permitted or required by this subchapter, a covered entity may not use or disclose protected health information without an authorization that is valid under this section. When a covered entity obtains or receives a valid authorization for its use or disclosure of protected health information, such use or disclosure must be consistent with such authorization.

In this case, however, the plaintiff did not issue an authorization under 45 C.F.R. § 164.508(a)(1). Instead, the trial court issued a purported order directed to non-party medical providers who had provided treatment to the plaintiff authorizing such medical providers to engage in ex parte communications with the defendant’s attorneys because it believed that its purported order fell under 45 C.F.R. § 164.502(a)’s exceptions for disclosures that are permitted under 45 C.F.R. § 164.512(e). The trial court’s purported order states, in pertinent part:

TO: All Hospitals, Clinics, Pharmacies, Physicians, Social Workers, Educators, Psychiatrists, Psychologists, Therapists, Governmental Agencies, (State and Federal); All Other Medical Institutions, Practitioners, Health Care Providers, Past and Present.
You are further notified that, pursuant to federal and state law, counsel for the defendants are hereby authorized to talk with Bobbie Jean Proctor’s treating physicians or other health care providers, without counsel or the parties, including the plaintiff, being present or participating, provided the health care provider consents to the interview. This is based on the Court’s finding that the plaintiff has made a claim for personal injuries, and in filing this lawsuit has waived any privilege existing between the patient and health care provider. This Order does not require you to meet or speak with any attorney in this proceeding. You have the right to decline an attorney’s request to speak or meet with you informally.
This Order complies with HIPAA federal standards for privacy of individual health information, 45 C.F.R. Parts 160 and 164....
This Court further enters a qualified protective order consistent with 45 C.F.R. 164.512(e)(1). Specifically, the parties are prohibited from using or disclosing the protected health information of Bobbie Jean Proctor for any purpose other than this litigation. Further, the parties agree to return to the covered entity or destroy the protected health information (including all copies made) at the end of this litigation.

(Emphasis removed.)

Under 45 C.F.R. § 164.512(e)(1), HI-PAA authorizes disclosure in the course of any judicial or administrative proceeding:

(1) Permitted disclosures. A covered entity may disclose protected health information in the course of any judicial or administrative proceediny:
(i) In response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order, or
(ii) In response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal, if:
(A) The covered entity receives satisfactory assurance, as described in paragraph (e)(l)(iii) of this section, from the party seeking the information that reasonable efforts have been made by such party to ensure that the individual who is the subject of the protected health information that has been requested has been given notice of the request; or
(B) The covered entity receives satisfactory assurance, as described in paragraph (e)(l)(iv) of this section, from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order that meets the requirements of paragraph (e)(l)(v) of this section.

(Emphasis added.)

The trial court is correct that the Secretary created exceptions to HIPAA’s general prohibition on the disclosure of plaintiffs protected health information and that some of those exceptions are listed in 45 C.F.R. § 164.512(e). The trial court, however, erred in its application of 45 C.F.R. § 164.512(e)(1) to this case because the plain and ordinary language of 45 C.F.R. § 164.512(e)(1) does not authorize the disclosure of protected health information during a meeting in which an attorney, without express authorization of the patient, has ex parte communications with a physician.

Stated another way, 45 C.F.R. § 164.512(e)(1) permits a health care provider to disclose otherwise protected health information “in the course of any judicial or administrative proceeding ” if that disclosure is in response to (i) an order of a court, or (ii) in response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court. (Emphasis added). Thus, by the express language of 45 C.F.R. § 164.512(e)(1), the covered entity’s disclosure must occur “in the course of’ a “judicial proceeding,” and it must be made in response either to a formal process, whether in the form of a court order, discovery request or other lawful process.

The meaning of a term can vary depending on the context of its use. For instance, when a statute in question fails to provide a statutory definition, and there is no case law interpreting the term in the context of the statute, then the Court presumes that the term is used according to its plain and ordinary meaning. The term “judicial proceeding” would be commonly understood to refer to a case filed in a judicial forum. “In the course of’ a judicial proceeding, thus, would be commonly understood to include matters that occur while a case is pending in a judicial forum. This is consistent with the dictionary definition of “in the course of,” which defines “in the course of’ as (1) “undergoing the specified process ... (2) during the specified period ... (3) during and as part of the specified activity.” The New Oxford American Dictionary 389 (2nd ed.2005). The dictionary may be used to derive the plain and ordinary meaning of a term. Tendai v. Mo. Bd. of Registration for the Healing Arts, 161 S.W.3d 358, 366 (Mo. banc 2005) (overruled on other grounds).

In the context of defamation, however, the phrase “judicial proceedings” has been interpreted more broadly because of the nature of the privilege involved. Roberson v. Beeman, 790 S.W.2d 948, 950 (Mo.App.1990), held that a demand letter sent before trial was considered within judicial privilege because “published in the course of a judicial proceeding.” See also Pape v. Reither, 918 S.W.2d 376, 381 (Mo.App.1996) (settlement letter sent before trial is within judicial proceedings for purposes of the judicial privilege against defamation).

By contrast, the Missouri legislature, for purposes of a criminal statute, defined “judicial proceeding” narrowly as “any official proceeding in court, or any proceeding authorized by or held under the supervision of a court [.] ” § 575.010(4), RSMo Supp. 2009 (emphasis added).

Black’s Law Dictionary 122 (5th ed.1979) (citation omitted) defines “authorize” as:

[t]o empower, to give a right or authority to act. To endow with authority or effective legal power, warrant, or right. To permit a thing to be done in the future. It has mandatory effect or meaning, implying a direction to act.
“Authorized” is sometimes construed as equivalent to “permitted”; or “directed,” or to similar mandatory language. Possessed of authority; that is, possessed of legal or rightful power, the synonym of which is “competency.”

Black’s Law Dictionary defines “supervision” as “[a]n act of occupation of supervising; inspection.” Id. at 1290. It also defines “supervise” as “[t]o have general oversight over, to superintend or to inspect.” Id.

While neither HIPAA nor its regulations expressly define “in the course of’ or “judicial proceeding,” or expressly state whether the term should be given its common, narrow or broad legal definitions, a narrow definition is implicit in HIPAA’s regulatory requirement in 45 C.F.R. § 164.512(e)(1) that a covered entity may make disclosures only pursuant to a court order or subpoena, discovery request, or other lawful process. The Secretary has stated that this means that:

In § 164.512(e) of the final rule, we permit covered entities to disclose protected health information in a judicial or administrative proceeding if the request for such protected health information is made through or pursuant to an order from a court or administrative tribunal or in response to a subpoena or discovery request from, or other lawful process by a party to the proceeding.

Standards for Privacy of Individually Identifiable Health Information, 65 Fed.Reg. 82462, 82529 (Dec. 28, 2000) (emphasis added). In other words, such disclosure must be under the supervisory authority of the court either through discovery or through other formal court procedures.

This regulation does not itself authorize any additional process or procedure for obtaining a court order, subpoena, or other lawful process; that is left to the rules in the individual states. In this context, under Missouri’s civil procedure rules, the trial court has the authority and oversight over: (1) pretrial motion proceedings and trial (i.e., official proceedings in court) and (2) formal discovery (ie., proceedings authorized by or held under the supervision of a court). State ex rel. Norman v. Dalton, 872 S.W.2d 888, 891 (Mo.App.1994).

None of these rules authorizes an order directing or authorizing a physician to engage in ex parte communications. Missouri case law is clear that while Missouri law has not prohibited a party from engaging in voluntary ex parte communications with a treating physician, the trial courts have never supervised these communications nor exercised authority over them, and the trial courts have not had authority to compel a plaintiff to expressly authorize ex parte discussions with her physician. Brandt I, 856 S.W.2d at 661; Woytus, 776 S.W.2d at 392. Further, the trial courts had no authority to force a physician, over his own objection, to engage in informal ex parte discussions with an attorney during discovery. Brandt I, 856 S.W.2d at 662. Given Missouri’s law on the subject of ex parte physician communications, the meeting at which ex parte communications occur is not a judicial proceeding because the trial court has no general oversight of the meeting or any control over it. Thus, 45 C.F.R. § 164.512(e), which permits disclosures in the course of judicial proceedings, does not apply to a meeting for ex parte communications, and consequently, a trial court has no authority to issue a purported HIPAA order advising the plaintiffs non-party treating physicians that they may or may not participate in informal discovery via ex parte communications.

In both Brandt opinions, this Court reiterated its conclusion that a plaintiff cannot be compelled by a trial court to sign an authorization consenting to ex parte communications with his treating physicians in favor of defendants or their attorneys. The rationale for the holdings of the Brandt opinions is particularly relevant to this Court’s resolution of this case today:

[Tjhis court will not require that a non-enumerated discovery method be added to those already available under the [Missouri Rules of Court]. Information or evidence that can be obtained legitimately through ex parte discussion [with treating physicians] can also be obtained through the methods of discovery listed in the [Missouri Rules of Court]. Any burdens caused defendants by being restricted to the specially enumerated discovery procedures are outweighed by the potential risks to the physician-patient relationship in deviating from those procedures.

Woytus, 776 S.W.2d at 395.

The rules of discovery enumerated by this Court are found at Rules 56 to 61. These rules provide the trial court discretion to issue orders relating to the perimeters of interrogatories, depositions, production of documents, requests for admission, physical and mental examinations, and discovery sanctions. The defense in this case concedes that there is no discoverable information that they could obtain from an informal ex parte discussion with the treating physician that they could not obtain by use of these rules of discovery. However, there is nothing in these rules of discovery that authorizes the trial court to issue orders governing methods of informal ex parte communications with plaintiffs non-party treating physicians.

Likewise, there is no regulation in the HIPAA framework that authorizes a trial court in Missouri to issue an order permitting a physician to divulge a patient’s protected health information outside the con-fínes of a judicial proceeding over which the trial court has direct supervision thereof. Compliance with HIPAA and this Court’s rules of discovery will ensure the disclosure of the health information and at the same time limit the potential liability of a treating physician who was prompted to provide protected health information. The treating physician in this case can comply with HIPAA by not giving an ex parte interview without an authorization and also comply with Missouri common law by choosing not to grant the ex parte interview.

Conclusion

In the instant case, by issuing a purported formal order that was directed to non-party medical providers and, essentially, providing an advisory opinion to said non-party medical providers about the trial court’s understanding of the law on informal ex parte communications, the trial court exceeded its authority, and the preliminary writ of prohibition is made permanent.

All concur.

      . Portions of the court of appeals principal opinion by Judge Mark D. Pfeiffer and the concurring opinion of Judge James M. Smart, Jr., are used without further attribution.

      . This Court's emphasis on the formality of the trial court’s order expressly authorizing informal, ex parte communications with a litigant patient’s non-party physician absent express authorization from the patient relates to this Court’s later discussion that there is no rule of discovery authorizing such an order and that the trial courts in the State of Missouri have no oversight authority to supervise such informal discovery.

      . There is also nothing in the statute that affirmatively authorizes informal and involuntary ex parte communications with a litigant patient’s treating physicians.

      . This is a medical malpractice case. Informal ex parte discovery in such a case presents special inherent risks that are not generally present in other types of personal injury litigation. In Woytus, which did not involve a medical malpractice claim, the Court nevertheless felt compelled to mention the risks of ex parte interviews in medical malpractice cases:
      This court will not overlook the current concerns in the medical malpractice insurance industry and the attitudes of physicians and carriers alike. An unauthorized ex parte interview could disintegrate into a discussion of the impact of a jury’s award upon a physician’s professional reputation, the rising cost of malpractice insurance premiums, the notion that the treating physician might be the next person to be sued, and other topics which might influence the treating physician's views. The potential for impropriety grows even larger when defense counsel represents the treating physician’s own insurance carrier and when the doctor, who typically is not represented by his personal counsel at the meeting, is unaware that he may become subject to suit by revealing the plaintiff/patient's confidences which are not pertinent to the pending litigation.
      776 S.W.2d at 395 (quoting Manion v. N.P.W. Med. Ctr. of N.E. Pa., Inc., 676 F.Supp. 585, 594-95 (M.D.Pa.1987)). What is possible in an "unauthorized” ex parte interview would also be possible in one "authorized” by a court. It is not a likely coincidence that, excepting Woytus, the reported cases involving attempts by defendants to engage in ex parte interviews with treating physicians are all medical malpractice cases.

      . HIPAA’s general preemption rule is that any state law that is contrary to HIPAA will be preempted. Therefore, key to determining HIPAA preemption is the threshold requirement that preemption by HIPAA will not occur unless the state law and HIPAA are "contrary.”
      The Privacy Rule defines "contrary” as meaning that "[a] covered entity would find it impossible to comply with both the State and federal [HIPAA Privacy Rule] requirements" (the "[ijmpossibility [t]est”). Stated another way, the two laws are contrary under the impossibility test if any action taken by a covered entity — either to disclose the protected health information or not to disclose the protected health information— would violate either the state law or HIPAA.

        Cohen, at 1105-06.

      . The effect of the trial court's purported order is to provide an advisory opinion to persons and entities not parties to the underlying litigation. Aside from Missouri’s case law that disfavors advisory opinions, see, e.g., State v. Burgin, 203 S.W.3d 713, 717 (Mo.App.2006), here the trial court is communicating an advisory opinion to those not even a party to the underlying litigation. This advisory opinion creates substantial risk on the part of the treating physician who could unintentionally communicate protected health information outside the scope of information waived by the patient’s lawsuit. Not only would that have the potential to prejudice the patient by going beyond the waiver and the scope of discovery, but it would also have potential detriment to the physician who would be subject to the severe penalties associated with a HIPAA violation. See 42 U.S.C. § 1320d-6(b).

      . As a result, various courts in other states presented with the issue of whether ex parte interviews of treating physicians are permissible in personal injury and medical malpractice cases after the enactment of HIPAA come to different conclusions. For example:
      (1) The Michigan Supreme Court permitted defense counsel in a medical malpractice case to seek ex parte interviews with plaintiffs treating physicians, but Michigan had a specific statute authorizing this procedure. Mich. Comp. Laws § 600.2912f (2000); Holman v. Rasak, 785 N.W.2d 98, 486 Mich. 429 (2010).
      (2) The Georgia Supreme Court, without reference to any rules of discovery, simply relied upon the language in HIPAA regarding qualified protective orders and "public policy” to hold that a trial court could enter a narrowly-drawn protective order to allow an ex parte interview of a treating physician in a medical malpractice case. Baker v. Wellstar Health Sys., Inc.

      (3)The New Jersey Superior Court permitted the ex parte interviews with plaintiff's treating physicians by ordering plaintiff to sign an authorization permitting such interviews. But, the authorization was to clearly indicate that the physician's participation was voluntary. Additionally, any interview was required to be recorded and transcribed and a copy of the transcript provided to plaintiff's counsel. Diet Drug Litigation v. Wyeth, Inc., 384 N.J.Super. 546, 895 A.2d 493 (2005).

      . In reaching our conclusion, we stop short of enthusiastically endorsing the idea that a physician should freely engage in ex parte discussions regarding a patient's condition. When a doctor engages in ex parte communications with a patient's adversaries, there is a risk that the disclosure will exceed the bounds of the waiver of the privilege.
      856 S.W.2d at 674-75.

      . Of note, a health care provider who, in violation of the HIPAA privacy rule, unlawfully obtains or discloses individually identifiable protected health information can be fined up to $50,000 or imprisoned for up to one year, or both. See 42 U.S.C.A. § 1320D-6.

      . If either the state law or HIPAA (or both) is permissive, that is, at least one of the statutes allows a particular action but does not compel it, then the statutes are not contrary under the impossibility and obstacle tests. For example, if a state law permits ex parte interviews and HIPAA allows them if certain procedures are followed, then a covered entity could be in compliance with both statutes by either not engaging in ex parte discussions at all (since neither statute compels them), or by engaging in them after satisfying HIPAA’s procedural requirements. Since there are no impediments to complying with both HIPAA and the state law, the statutes are not contrary under the impossibility test, and the state law is not an obstacle to HIPAA compliance.

        Cohen, at 1140 (internal citations omitted).


source: Caselaw Access Project

author: ROBERT G. DOWD, JR., Judge.

license: Public Domain

text:
    Phillip SAPP, Appellant, v. CITY OF ST. LOUIS, et al., Respondents.
    No. ED 93728.
    Missouri Court of Appeals, Eastern District, Division Two.
    July 13, 2010.

      Charles W. Bobinette, St. Louis, MO, for Appellant.
    Patricia L. Hageman, City Counselor, Christine L. Hodzie, Asst. City Counselor, St. Louis, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

Phillip Sapp (“Sapp”) appeals from the judgment of the circuit court dismissing his petition for administrative review for lack of subject matter jurisdiction. We reverse and remand.

Sapp was employed by the Division of Corrections for the City of St. Louis (“the City”) as a Corrections Officer II. On December 5, 2007, Sapp reported an inmate count of seventy-nine, and it was subsequently determined that there were eighty inmates in Sapp’s assigned housing unit. As a result of Sapp’s actions, there was a recount, and Sapp admitted he did not physically conduct a count of the housing unit prior to the calling of the count, which was a violation of the policies of the Division of Corrections.

The Division of Corrections brought charges against Sapp because of this incident. The immediate appointing authority subsequently advised Sapp of charges against him. Sapp was given an explanation of the evidence, and was given an opportunity to present his defense. For his violation of the counting policy, the appointing authority gave him a four-day suspension without pay to be served from February 11-14, 2008.

Sapp subsequently appealed to the Civil Service Commission (“the Commission”), which reviewed and considered the written statement of the appointing authority, Sapp’s written response, and the appointing authority’s final written response. The Commission found Sapp was advised of the charges against him, given an explanation of the evidence, and given an opportunity to present his defense. On July 2, 2008, the Commission issued findings of fact and conclusions of law and upheld Sapp’s suspension.

On September 12, 2008, Sapp filed a petition for administrative review in the circuit court under Section 586.150, RSMo 2000. Sapp argued the Commission’s decision was against the overwhelming weight of the competent and substantial evidence. In particular, he argued he did not violate any work rule by failing to make an independent count of the inmates, and, at the time of the count, he was responding to a medical emergency in Housing Unit 8 Bravo and was escorting an inmate to the medical unit with the approval of his supervisor.

The City filed a motion to dismiss, arguing the circuit court lacked subject matter jurisdiction because Sapp’s petition sought review under Section 536.150. The City claimed this was a contested case renewable according to the provisions of Section 536.110. Section 536.150 does not allow for review of administrative decisions in contested cases.

Sapp then filed a motion for leave to file his first amended petition for administrative review, seeking to plead he was entitled to review under the contested and non-contested provisions of Chapter 536. His motion for leave was denied.

The circuit court found the case was a contested case and, as such, review was not appropriate under Section 536.150. Further, the circuit court found the Commission’s final decision was dated July 18, 2008, and Section 536.110 provided that Sapp had thirty days after the mailing or delivery of the notice of the final decision to file a petition for administrative review in the circuit court. However, Sapp did not file his petition until September 12, 2008, and thus, the circuit court concluded it did not have jurisdiction and it dismissed Sapp’s petition for administrative review. This appeal follows.

Initially, we note the City has filed a motion to dismiss pursuant to Section 536.110.1 contending that this court has no subject matter jurisdiction over this case, and this motion has been taken with the case.

Where the facts are uncontested, a question as to the subject-matter jurisdiction of a court is purely a question of law, which is reviewed de novo. McCracken v. Wal-Mart Stores East, LP, 298 S.W.3d 473, 476 (Mo. banc 2009).

In its motion to dismiss, the City argues the Commission’s decision upholding Sapp’s four-day suspension was mailed on July 19, 2008. However, Sapp did not file an appeal in the circuit court until September 12, 2008. Thus, the City asserts because Sapp’s case was a contested case as set forth in Section 536.110, Sapp failed to timely appeal the decision of the Commission within thirty days of the mailing of the notice of the administrative decision as required by Section 536.110.1. The City concludes because the circuit court lacked subject matter jurisdiction, this court also lacks jurisdiction.

In order to rule on the City’s motion to dismiss, we must determine whether Sapp’s case was a contested or non-contested case. The City asserts this matter was a contested case while Sapp contends it was non-contested. Because this determination is also at issue in Sapp’s first and second points, we will begin by evaluating these points together.

In his first point, Sapp argues the circuit court erred in dismissing his petition because the circuit court had jurisdiction to review Sapp’s four-day suspension without pay under Section 536.150 as a non-contested case because he had no statutory or constitutional right to an evidentiary hearing before the Commission. In his second point, Sapp alternatively argues the circuit court erred in dismissing his petition because the circuit court had jurisdiction to review Sapp’s four-day suspension without pay under Section 536.150 as a contested case because the Commission’s decision was void in that Sapp was not afforded a contested case hearing.

Determining whether an administrative proceeding is a contested or non-contested case is not left to the discretion of the administrative body, but is, rather, determined as a matter of law. State ex rel. School Dist. of Kansas City v. Wil liamson, 141 S.W.3d 418, 426 (Mo.App. W.D.2004).

Contested case review is controlled by sections 536.100 to 586.140. Contested cases provide the parties with an opportunity for a formal hearing with the presentation of evidence, including sworn testimony of witnesses and cross-examination of witnesses, and require written findings of fact and conclusions of law. The review of a contested case is a review by the trial court of the record created before the administrative body. The trial court’s decision upon such review is appealable, but the appellate court also looks back to the record created before the administrative body.
Non-contested cases do not require formal proceedings or hearings before the administrative body. As such, there is no record required for review. In the review of a non-contested decision, the circuit court does not review the administrative record, but hears evidence, determines facts, and adjudges the validity of the agency decision. Under the procedures of section 536.150, the circuit court conducts such a hearing as an original action.
In either a contested or a non-contested case the private litigant is entitled to challenge the governmental agency’s decision. The difference is simply that in a contested case the private litigant must try his or her case before the agency, and judicial review is on the record of that administrative trial, whereas in a non-contested case the private litigant tries his or her case to the court. Depending upon the circumstances, this difference may result in procedural advantages or disadvantages to the parties, but in either situation, the litigant is entitled to develop an evidentiary record in one forum or another.

City of Valley Park v. Armstrong, 273 S.W.3d 504 (Mo. banc 2009), quoting Furlong Companies, Inc. v. City of Kansas City, 189 S.W.3d 157, 165 (Mo. banc 2006) (internal citations omitted).

Under Section 536.010(4), “ ‘[contested case’ means a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after a hearing.” The term “hearing,” as used in section 536.010(4), means a proceeding at which a “measure of procedural formality” is followed. Ladd v. Missouri Bd. of Probation and Parole, 299 S.W.3d 33, 38 (Mo.App. W.D.2009). Procedural formalities in contested cases generally include: “notice of the issues (section 536.067); oral evidence taken upon oath or affirmation and the cross-examination of witnesses (section 536.070); the making of a record (section 536.070); adherence to evidentia-ry rules (section 536.070); and written decisions including findings of fact and conclusions of law (section 536.090).” City of Valley Park v. Armstrong, 273 S.W.3d 504, (Mo. banc 2009). The “law” referred to in the contested case definition encompasses any statute or ordinance, or any provision of the state or federal constitutions that mandates a hearing. State ex rel. Yarber v. McHenry, 915 S.W.2d 325, 328 (Mo. banc 1995). In determining if a hearing comports with these formalities, the statute, ordinance, or constitutional provision requiring the hearing is examined. See Ladd, 299 S.W.3d at 38. Where the State grants an employee a right or expectation that adverse action will not be taken against him except upon the occurrence of specified behavior, the determination of whether such behavior has occurred becomes critical, and the minimum requirements of procedural due process appropriate for the circumstances must be observed. See Vitek v. Jones, 445 U.S. 480, 491, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) and Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 582, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). These minimum requirements are a matter of federal law, and they are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action. Id.

Here, there is no statute or ordinance requiring a hearing. Thus, we must examine whether constitutional provisions, such as the due process clause, require a hearing under these circumstances. Specifically, we must determine whether Sapp had a right to continued employment with the City.

A property interest in public employment is based upon a reasonable and legitimate expectation of continued employment. Fransk v. Curators of University of Missouri, 268 S.W.3d 476, 480-81 (Mo.App. W.D.2008). An employee who can only be discharged for cause has a constitutionally-protected property interest in continued employment, which creates a right under Missouri law to notice and a hearing prior to being discharged from his employment. Wooldridge v. Greene County, 198 S.W.3d 676, 683-84 (Mo.App. S.D.2006). In addition to discharges for cause, suspensions for cause have also been found to implicate constitutionally-protected property interests. A three-day suspension of a city employee has been considered a constitutionally-protected property interest such that the case was reviewed as a contested case. Patrick v. City of Jennings, 295 S.W.3d 921, 927 (Mo.App. E.D.2009), see also State ex rel. City of Springfield v. Bonacker, 923 S.W.2d 467 (Mo.App. S.D.1996)(analyzing a one-day suspension as a contested case) and Jarrett v. Hill, 648 S.W.2d 170 (Mo.App. E.D.1983)(analyzing a five-day suspension as a contested case).

Sapp asserts alternatively that he has a constitutionally-protected property interest in his continued employment with the City. Sapp also maintains his four-day suspension was a significant loss of property, implicating due process protections. We agree and find a constitutionally-protected property interest is at issue in this case. As a result, Sapp was entitled to have his case adjudicated as a contested case, as he argues alternatively in his second point. Because there was a constitutionally-protected property interest at issue here, the Commission was obligated to provide Sapp with a contested case hearing to protect his right to due process.

An employee has an opportunity to receive some measure of post-termination process, usually a hearing with heightened procedural safeguards. Krentz v. Robertson Fire Protection District, 228 F.3d 897, 902 (8th Cir.2000). Similarly, Sapp had a right to a hearing with heightened procedural safeguards to challenge his suspension because his procedural due process rights were implicated.

The Missouri Administrative Procedure Act (“MAPA”), Sections 536.010-.150, sets out the procedural requirements for such a hearing with heightened procedural safeguards. The Commission is required to follow these statutory procedures because it constitutes an “agency” for purposes of the Missouri Administrative Procedure Act, Sections 536.010-.150. See Schwartz v. City of St. Louis, 274 S.W.3d 509, 512 (Mo.App. E.D.2008). However, it is clear that the procedures in the MAPA were not followed by the Commission, particularly those related to the conduct of the hearing in Section 536.070.

The City, on the other hand, argues that Sapp got what he requested. The City noted Civil Service Rule XIII provides:

Any regular permanent employee in the competitive service, subject to the provisions of Article XVIII and these rules, who believes he has been dismissed, retired, demoted, suspended or reduced in pay without just cause may, within ten (10) days after the effective date of such action or receipt of status form, request in writing a hearing or review to determine the reasonableness of such action. The Commission shall act on the employee’s request in an expeditious manner and shall grant the employee such hearing or other review as soon as possible considering the nature of the appeal and the Commission’s docket of hearings and reviews, (emphasis added)

Here, the City asserts Sapp requested a written review, and received such a review. However, our review of the record shows Sapp was merely acting according to the Commission’s policy, which stated, in pertinent part “[t]he Civil Service Commission adjudicates appeals from suspensions of less than 15 days, reductions in pay equal to 14 days or less, docks and Service Ratings based upon written submissions from both parties.” Thus, Sapp’s right to due process was violated when he did not get a contested case hearing.

However, the City contends Sapp waived his right to a contested case hearing by failing to request a hearing. In Krentz, the court found an employee could waive a procedural due process claim by refusing to participate in post-termination administrative or grievance procedures made available by the state. Krentz, 228 F.3d at 904. In Krentz, the plaintiffs contention that he was unaware of his right to request a contested case hearing was unavailing because it rested on a legal, rather than a factual, misunderstanding, and persons are presumed to know the law. Id.

However, in this case, unlike in Krentz, Sapp was affirmatively informed the Commission’s policy was to handle suspensions like his through a -written review process, which did not include the procedural due process protections afforded in contested cases. Thus, Sapp did not waive his procedural due process claim by requesting written review because the Commission improperly presented written review as his only option. Even if Sapp believed he was entitled to a hearing, the Commission’s policy stated he was only entitled to written review because his suspension was for less than 15 days.

Our colleagues dealt with a similar circumstance in Twelve Oaks Motor Inn, Inc. v. Strahan, 110 S.W.3d 404, 408 (Mo.App. S.D.2003), where the Commission provided Instructions and Information to Twelve Oaks that gave erroneous information regarding when an appeal from the Board of Equalization must be filed. Then Commission refused to accept the complaint by which Twelve Oaks sought to appeal, although the complaint was filed within the time specified in the Instructions and Information the Commission had provided. Id. To rectify this situation, the court applied the doctrine of equitable estoppel and found the Commission’s order declaring that it was without jurisdiction to be unauthorized by law. Id. at 409.

In this case, Sapp asserted the doctrine of quasi-estoppel prevents a party from taking a position directly contrary to or inconsistent with another position previously taken. See Glenstone Block Co. v. Pebworth, 264 S.W.3d 703, 710 (Mo.App. S.D.2008) and Porter v. Erickson Transport Corp., 851 S.W.2d 725, 736 (Mo.App. S.D.1993). In this case, the City took the position that Sapp was not entitled to a contested case hearing through its promulgation of the Commission’s policy that suspensions such as his were handled through written review procedures that fall short of those required for contested case hearings. Then when Sapp attempted to appeal his case under the statute for non-contested cases, the City changed its position and argued he was entitled to a contested case hearing, but that he waived it. Further, the City asserted because he was entitled to a contested case hearing, his notice of appeal of the Commission’s decision was untimely. As a result, we find the doctrine of quasi-estoppel applies to prevent the City from contending Sapp waived his contested case hearing after it led him to believe he was only entitled to a non-contested written review.

Therefore, applying the doctrine of quasi-estoppel, we find the trial court’s judgment finding it did not have subject matter jurisdiction in this case was unauthorized by law. As a result, we hereby deny the City’s motion to dismiss for lack of subject matter jurisdiction, and we remand this matter to the circuit court with orders to remand it to the Commission so the Commission can hear and decide the appeal in accordance with contested case procedures prescribed by Section 536.010 et seq.

SHERRI B. SULLIVAN, P.J., and PATRICIA L. COHEN, J., concur.

      . All further references are to RSMo 2000, unless otherwise indicated.

      . Section 536.150 provides:
      1. When any administrative officer or body existing under the constitution or by statute or by municipal charter or ordinance shall have rendered a decision which is not subject to administrative review, determining the legal rights, duties or privileges of any person, including the denial or revocation of a license, and there is no other provision for judicial inquiry into or review of such decision, such decision may be reviewed by suit for injunction, certiora-ri, mandamus, prohibition or other appropriate action, and in any such review proceeding the court may determine the facts relevant to the question whether such person at the time of such decision was subject to such legal duty, or had such right, or was entitled to such privilege, and may hear such evidence on such question as may be properly adduced, and the court may determine whether such decision, in view of the facts as they appear to the court, is unconstitutional, unlawful, unreasonable, arbitrary, or capricious or involves an abuse of discretion; and the court shall render judgment accordingly, and may order the administrative officer or body to take such further action as it may be proper to require; but the court shall not substitute its discretion for discretion legally vested in such administrative officer or body, and in cases where the granting or withholding of a privilege is committed by law to the sole discretion of such administrative officer or body, such discretion lawfully exercised shall not be disturbed.
      2. Nothing in this section shall apply to contested cases reviewable pursuant to sections 536.100 to 536.140.
      3. Nothing in this section shall be construed to impair any power to take summary action lawfully vested in any such administrative officer or body, or to limit the jurisdiction of any court or the scope of any remedy available in the absence of this section.

      . Section 536.110.1 provides: "Proceedings for review may be instituted by filing a petition in the circuit court of the county of proper venue within thirty days after the mailing or delivery of the notice of the agency's final decision."

      . Sapp's alternative argument in his second point was that Sapp's case could be reviewed under Section 536.150 as a contested case since he did not receive a contested case hearing. However, this argument fails because Section 536.150.2 clearly states Section 536.150 does not apply to contested cases.


author: ROY L. RICHTER, Chief Judge.

text:
    Sheila RUDDER, Claimant/Appellant, v. MERS/MISSOURI GOODWILL INDUSTRIES, and Division of Employment Security, Respondents.
    No. ED 94979.
    Missouri Court of Appeals, Eastern District, Division One.
    Aug. 3, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 15, 2010.
    Sheila Rudder, St. Charles, MO, pro se.
    Michael Pritchett, Jefferson City, MO, for Respondent.
   ROY L. RICHTER, Chief Judge.

Sheila Rudder (Claimant) appeals the Labor and Industrial Relations Commission’s (Commission) decision denying her application for unemployment benefits. We dismiss the appeal.

A deputy of the Division of Employment Security (Division) concluded that Claimant was ineligible for unemployment benefits. Claimant appealed to the Appeals Tribunal, which affirmed the deputy’s conclusion. Claimant then filed an application for review with the Commission, which issued an order affirming the Appeals Tribunal’s decision. Claimant has now filed a notice of appeal to this Court. The Division has filed a motion to dismiss Claimant’s appeal, asserting it is untimely. Claimant has not filed a response to the motion.

Section 288.210, RSMo 2000, requires that a claimant file a notice of appeal to this Court from the Commission’s decision within twenty days of the decision becoming final. The Commission’s decision becomes final ten days after it is mailed to the parties. Section 288.200.2, RSMo 2000. Here, the Commission mailed its decision to Claimant on May 3, 2010. Therefore, the notice of appeal to this Court was due on or before June 2, 2010. Sections 288.200.2, 288.210. Claimant faxed her notice of appeal to the Commission on June 4, 2010. As a result, Claimant’s notice of appeal is untimely under section 288.200.

Unemployment benefits are solely a creature of statutory provision. Martinez v. Lear-Ed, Inc., 155 S.W.3d 809, 810 (Mo.App.E.D.2005). The unemployment statutes do not provide for the late filing of the notice of appeal and do not recognize any exceptions for filing out of time. McCuin Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App.E.D.2000).

The Division’s motion to dismiss is granted. The appeal is dismissed.

KURT S. ODENWALD, J. and GARY M. GAERTNER, JR., J., concur.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Lorenzo JACKSON, Jr., Appellant.
    No. ED 94302.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 24, 2010.
    Lorenzo Jackson, Jr., Cameron, MO, pro se.
    Christopher A. Koster, Attorney General, Daniel N. McPherson, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before KURT S. ODENWALD, P.J. and ROBERT G. DOWD, JR. and NANNETTE A. BAKER, JJ.
   ORDER

PER CURIAM.

Lorenzo Jackson appeals from the circuit court’s order and judgment denying his petition for declaratory judgment. Jackson contends the circuit court erred in denying his petition without specifically declaring his rights as requested.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).


author: CLIFFORD H. AHRENS, Judge.

text:
    Todd A. BENDER, Appellant, v. DIRECTOR OF REVENUE, Respondent.
    No. ED 93522.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 31, 2010.

      Ronald E. Jenkins, St. Louis, MO, for appellant.
    Chris Koster, Atty. Gen., Jefferson City, MO, for respondent.
   CLIFFORD H. AHRENS, Judge.

Todd Bender appeals the judgment of the trial court in favor of the Director of Revenue, State of Missouri (“DOR”) on Bender’s petition for review of the disqualification of his driving privileges. Bender contends that because samples of his blood were taken for purposes of determining his blood alcohol content based on a search warrant, he did not refuse to submit to a chemical test of his blood. Finding no error, we affirm.

On or about 10:24 p.m., November 21, 2008, Officer Richard Harrell of the Troy Police Department stopped Bender while he was operating a motor vehicle upon suspicion of driving while intoxicated. Officer Harrell asked Bender to perform several field sobriety tests, which he did. Following the completion of these tests, Officer Harrell arrested Bender for driving while intoxicated, and took him to the Lincoln County Medical Center (“Hospital”). At the Hospital, Officer Harrell advised Bender of his Miranda rights, and then read the Missouri Implied Consent law to him. Officer Harrell then asked him to submit to a chemical test of his blood. Bender requested the opportunity to contact an attorney, and after speaking with his lawyer at approximately 11:30 p.m., he refused to submit to a chemical test of his blood.

Officer Harrell advised Bender that he was going to take him to the Lincoln County Sheriffs Department, where he would be held in jail while Officer Harrell applied for a search warrant. Officer Harrell submitted an affidavit to the Lincoln County Prosecuting Attorney for a search warrant for two vials of blood to be drawn from Bender. At approximately 2:15 a.m., November 22, 2008, a judge signed a search warrant for the blood, which was executed at the Hospital later that morning. Blood was drawn from Bender at 3:15 a.m. and again at 4:15 a.m. Bender did not consent to either draw. The two vials of blood were sent for analysis to the Missouri State Highway Patrol Criminal Laboratory.

On November 22, 2008, the DOR notified Bender that his driving privileges would be revoked pursuant to section 577.041 RSMo (Cum.Supp.2008). Bender timely filed a petition for review in the trial court. The case was heard on July 14, 2009, and submitted on records entered into evidence by the DOR. Bender objected to the admission of the DOR records, and his counsel argued that while he refused to take a blood test upon advice of an attorney, he did take a blood test after a search warrant was obtained. The trial court admitted the DOR records into evidence and denied Bender’s petition for review, and specifically found in the judgment that Bender had refused to submit to a chemical test.

Bender now appeals from this judgment.

Our review of a driver’s license suspension or revocation is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Orton v. Director of Revenue, 170 S.W.3d 516, 520 (Mo.App.2005). Thus, we will affirm the judgment of the trial court’s decision to reinstate driving privileges if it is supported by substantial evidence, it is not against the weight of the evidence, and it does not erroneously declare or apply the law. Id. (citing Murphy, 536 S.W.2d at 32). Where the issue is statutory interpretation, which is a matter of law, we review the matter de novo. S.S. v. Mitchell, Director of Revenue, 289 S.W.3d 797, 799 (Mo.App.2009).

In his sole point relied on, Bender contends that the trial court erred in finding that he refused to submit to a chemical test of his blood because that finding is not supported by substantial evidence and is against the weight of the evidence in that he ultimately did submit to a chemical test of his blood that allowed the police officer to obtain his blood alcohol content. Bender argues that the trial court erroneously declared and misapplied the Implied Consent law.

Section 577.041.3 requires that the DOR revoke the license of a person under arrest for a DWI for refusing, when requested, to take a chemical test allowed under section 577.020 for a period of one year. Under section 577.041.4, a person whose license has been revoked for refusal to submit to a chemical test may petition for a hearing before a trial court in the appropriate county. At the hearing on such a petition, the DOR has the burden of proving all the required elements for upholding the revocation. Testerman v. Director of Revenue, 31 S.W.3d 473, 475-76 (Mo.App.2000). To make a prima facie case for revocation, the DOR must show that: 1) the driver was arrested; 2) the arresting officer had reasonable grounds to believe that the driver was driving a motor vehicle while intoxicated; and 3) the driver refused to submit to an authorized chemical test as requested. Section 577.041.4; Mount v. Director of Revenue, 62 S.W.3d 597, 599 (Mo.App.2001). In the present case, the matter at issue is the third element, the refusal to submit to a chemical test.

For purposes of section 577.041, a “refusal” means declining of one’s own volition to take a chemical test authorized by section 577.020 when requested to do so by an officer. See Spradling v. Deimeke, 528 S.W.2d 759, 766 (Mo.1975); Kotar v. Director of Revenue, 169 S.W.3d 921, 925 (Mo.App.2005). “The volitional failure to do what is necessary in order that the test can be performed is a refusal.” Spradling, 528 S.W.2d at 766 (emphasis added). Bender argues that because samples of his blood were obtained and a chemical test performed pursuant to a search warrant obtained after he had, upon advice of counsel, refused to submit to a chemical test of his blood, this is not a “refusal” under section 577.041. This argument is unpersuasive. Obtaining evidence of a driver’s blood alcohol content under the Missouri Implied Consent Law is distinct from obtaining evidence by a search warrant. State v. Smith, 134 S.W.3d 35, 40 (Mo.App.2003). The Missouri Implied Consent Law is directed to warrantless testing by consent by law enforcement officers, providing administrative and procedural remedies for refusal to comply. Id. Submitting to a court-ordered search warrant for one’s blood is not the same as consenting, making a volitional choice, to submit to a chemical test. Bender’s reliance on Kimbrell v. Director of Revenue, 192 S.W.3d 712 (Mo.App.2006) is misplaced. In that case, the driver, Mr. Kimbrell initially refused to submit to a chemical test, but changed his mind after his attorney contacted him. Id. at 714. It is only because he voluntarily requested the opportunity to submit to a chemical test after his initial refusal that the police were authorized to administer the test, if the officer elected to conduct. Id. If the police officer had chosen not to administer the test after the refusal, Mr. Kimbrell could not have compelled him to do so. Id. at 716. There is no evidence of any volitional acquiescence by Bender to submitting to a chemical test of his blood. If, after his initial refusal, Bender voluntarily requested to submit to a chemical blood test and Officer Harrell had agreed to have it administered, then Kimbrell would be applicable. This is not what occurred. Bender’s refusal required Officer Harrell to request a search warrant for Bender’s blood. Point denied.

The judgment of the trial court is affirmed.

SHERRI B. SULLIVAN, P.J., and LAWRENCE E. MOONEY, J., concur.

      . Unless noted otherwise, all further statutory citations are to RSMo (Cum.Supp.2008).


text:
    STATE of Missouri, Respondent, v. Victor D. BURTON, Appellant.
    No. ED 93331.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 31, 2010.

      Gwenda Renee Robinson, St. Louis, MO, for appellant.
    Chris Koster, Atty. Gen., Jayne T. Woods, Jefferson City, MO, for respondent.
   CLIFFORD H. AHRENS, Judge.

Victor Burton (“Defendant”) appeals from the judgment of the trial court entered after a jury convicted him of first-degree domestic assault (“Count I”), a felony, and violation of an order of protection (“Count II”), a misdemeanor. He contends that the trial court clearly erred in denying his motions for a judgment of acquittal because the evidence was insufficient to prove his guilt on Count II. He also argues that the trial court abused its discretion in admitting evidence of his pri- or battery. We affirm in part and reverse in part.

Viewed in the light most favorable to the judgment, the evidence is as follows. Defendant and J.J. began a romantic relationship in May 2006, and eventually lived together in Illinois. In December 2006, Defendant and J.J. argued, and he stabbed her in the hand, which required surgery to repair the damage to the tendons. This incident resulted in Defendant going to jail. J.J. relocated to Granite City, Illinois, and obtained an order of protection against Defendant from the Circuit Court of Madison County, Illinois (“Illinois Order”), on January 25, 2007, which was effective until January 24, 2009. The relationship continued for a time, purportedly because J.J. feared Defendant. J.J. ended the relationship and relocated without informing Defendant of her new residence in early 2008, but kept encountering him. On April 13, 2008, while sitting outside of her place of employment in the City of St. Louis, waiting for the business to open, she saw Defendant sitting about a block away. Later that day, Defendant entered J.J.’s workplace and demanded to speak with her. She talked to him outside, and he left. He returned shortly before J.J.’s shift ended, demanded to speak with her, and threatened to kill the husband of J.J.’s employer if he could not talk with her. The police were called, and arrested Defendant for violation of the Illinois Order, which was still in force.

On April 23, 2008, J.J. stopped off at a career center on her way to work. Defendant was at the career center, and followed her out as she left. She told him to leave her alone, but he followed her onto the bus, sitting next to her as she rode to work. J.J. repeatedly told him to leave her alone. When she got off the bus, Defendant exited the bus as well. They began arguing loudly. Defendant punched J.J., knocking her to the ground, and then proceeded to kick her in the head, and even jumped off the curb onto her head. Jeffrey Williams heard the argument and saw Defendant beating J.J., and another witness, Connie Kleinhanf, saw Defendant jumping up and down on J.J.’s head, and heard him curse and say “I’m going to kill you.” Kleinhanf approached J.J. and Defendant, trying to call 911 on her cell phone. Upon observing Williams and Kle-inhanf, Defendant fled. Kleinhanf went to a store, had the clerk call the police, and tried to assist J.J. She noticed Defendant peering from around the corner of a nearby building while she helped J.J. When the police arrived, Williams and Kleinhanf told them where they had observed Defendant hiding, noting that he was wearing a purple jacket. The police found Defendant nearby, a purple jacket nearby on the ground, and brought him back to the scene, where Williams and Kleinhanf identified him as J.J.’s assailant. There was blood on Defendant’s tennis shoes, which tests later identified as belonging to J.J.

The Grand Jury indicted Defendant on Count I, first-degree domestic assault in violation of section 565.072 RSMo 2000 for the incident of April 23, 2008. It also indicted him in Count II for violating the Illinois Order on April 13, 2008, by going to J.J.’s workplace and calling her a vulgar name, having knowledge of the Illinois Order, in violation of sections 455.010, 455.050, and 455.085.

At trial, J.J. testified about the incidents of April 13, 2008 and April 23, 2008. She was unable to testify about the actual assault on April 23, 2008, because she suffered permanent short-term memory problems stemming from that incident. She testified about the stabbing incident in December 2006 that preceded her seeking and obtaining the Illinois Order. She did not testify that Defendant knew about the Illinois Order, or that she ever told him about it or its contents. The State of Missouri did not enter a certified copy of the Illinois Order into evidence, nor did it introduce any evidence of proof of service of the Illinois Order to Defendant. Rather, The State and defense counsel stipulated that there was a valid order of protection granted on January 25, 2007, which was in effect until January 24, 2009, which stipulation was entered into evidence as Exhibit 1, and read to the jury by the trial court. The stipulation stated that:

Comes now both parties stipulate that [J.J.] was granted an order of protection by the Circuit Court of Madison County, Illinois on January 25, 2007. The parties further stipulate that said order was active and in effect April 13, 2008, and did not expire until January 24, 2009. The order required Victor Burton to have no direct or indirect contact with [J.J.],

The stipulation notably did not state that Defendant had been served with a copy of the Illinois Order or that he knew of it and its contents as of April 13, 2008.

Williams and Kleinhanf testified about the argument and assault on J.J. on April 23, 2008, and identified Defendant as her assailant. A surgeon who treated J.J. for her injuries testified. Several members of the City of St. Louis Police Department also testified, with their testimony addressing the apprehension of Defendant after the incident on April 23, 2008, and the matching of J.J.’s DNA to that found covering Defendant’s tennis shoes that he was wearing when apprehended. Defendant did not testify. Defense counsel moved for a judgment of acquittal at the close of the State’s evidence, which the trial court denied.

During its deliberations, the jury sent several questions to the trial court regarding the Illinois Order. The first question asked “was defendant aware of the protection order from Madison County?” This, and the other questions, led to a discussion on the record between the trial court, the prosecutor, and defense counsel, as follows in part:

Trial Court: ... Well, do you have any suggestions? I have Exhibit 1 here, but you know, in your learned latitude I gave to you to prepare the stipulation, you didn’t indicate anywhere in that that he knew or was served with the order.
Prosecutor: That’s true.
Trial Court: I don’t know if he was served with it or not.
Prosecutor: It is in the certified court file that he was served with the order. But obviously I did fail to put that in the stipulation.
Trial Court: And it’s not evidence before the jurors. So, do you have any suggestions as to a response to number one? I almost feel like saying who know [sic]?
Prosecutor: I mean I would suggest as to all of the questions I think the standard answer is just the jury will be guided by the evidence as it was submitted.
I believe [J.J.] did testify regarding whether or not he know about the order, but again, I don’t—
Trial Court: I don’t remember that.
Prosecutor: And maybe I am mistaken about that.
Trial Court: There may have been an inference. She may have given a conclusion of some sort. I won’t say that in the totality of the evidence maybe I didn’t get it....

The trial court simply informed the jury to consider the law and the evidence presented to it during the trial, and did not answer any of the questions sent to it. The jury returned verdicts of guilty on Count I and Count II. The trial court sentenced Defendant as a prior offender to a term of sixteen years’ imprisonment for Count I, and a term of one year’s imprisonment for Count II to run concurrently with the sentence for Count I. Defendant now appeals from this judgment.

In his first point relied on, Defendant contends that the trial court clearly erred in overruling his motions for a judgment of acquittal because the evidence was not sufficient to prove him guilty on Count II in that the State failed to prove beyond a reasonable doubt that he had notice of the Illinois Order prohibiting him from having contact with J.J., direct or indirect.

In reviewing a sufficiency of the evidence claim, this Court determines whether sufficient evidence permits a reasonable trier of fact to find guilt. State v. Ecford, 239 S.W.3d 125, 127 (Mo.App.2007) (quoting State v. McCoy, 90 S.W.3d 503, 505 (Mo.App.2002)). We view the evidence and the inferences therefrom in the light most favorable to the verdict, and disregard all evidence and inferences to the contrary. Id. However, this Court cannot provide missing evidence or give the State the benefit of speculative, unreasonable, or forced inferences. State v. Whalen, 49 S.W.3d 181, 184 (Mo. banc 2001). The State has the burden of proving each and every element of the charged offense beyond a reasonable doubt. Ecford, 239 S.W.3d at 127. There cannot be a conviction “ ‘except upon evidence that is sufficient to support a conclusion that every element of the crime has been established beyond a reasonable doubt.’ ” Woolford v. State, 58 S.W.3d 87, 89 (Mo.App.2001) (quoting Jackson v. Virginia, 443 U.S. 307, 314-15, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

Section 455.085 provides that a violation of the terms and conditions of either an ex parte order of protection and a full order of protection is a class A misdemeanor, unless the respondent had previously pleaded guilty or been found guilty of a prior violation of an order of protection within five years of the subsequent violation, in which circumstance the subsequent violation is a class D felony. It requires that the respondent have notice of the order of protection. The Missouri Supreme Court has held that “[f|or purposes of due process as it applies to the crime defined in section 455.085.8, notice is sufficient only if it arrives before the fact, when knowledge of the acts the statute forbids can, if heeded, permit a person to conform her conduct to the demands of the law.” State v. Gentry, 986 S.W.2d 790, 793 (Mo. banc 1996). It would be sufficient for a respondent to have actual notice of a protective order and its contents, even if he or she did not have legal notice. See id.

The evidence before the jury does not establish that Defendant was served with the Illinois Order and had legal notice, or that he had actual notice and knowledge of the Illinois Order and its contents. The stipulation between the State and Defendant merely agreed that there was a valid order of protection that was in effect on April 13, 2008. As the trial court itself observed, it did not stipulate that Defendant had notice of the Illinois Order. J.J. did not testify that she told Defendant about the Illinois Order, or that she informed him of its contents. None of the other witnesses testified about notice. The certified court file from Illinois that apparently contained evidence that Defendant was served with a copy of the Illinois Order was not in evidence before the jury. In its brief the State argues that rational jurors “could have inferred that J.J., in attempting to end her relationship with [Defendant] advised him that she had an order of protection against him. Indeed, if J.J. was willing to move away from [Defendant] to Granite City, and if she was willing to obtain the full order of protection, it stands to reason that she would advise [Defendant] of the order in attempting to end the relationship.” The State parenthetically added that there was nothing in the record to suggest that Defendant did not receive notice of the hearing and the order issued by the Illinois court, placing the burden of proving a negative on Defendant. The State also argues that the jury could reasonably have inferred that Defendant knew of the Illinois Order because J.J. testified that she resumed her relationship with him when he got out of jail because he said that “if he couldn’t have me nobody was going to[,]” and that rational jurors could have inferred that Defendant believed that he could not have J.J. “because he know that the order of protection precluded him from being with her.” The State makes further inferential arguments in this vein.

We would agree with the State it is highly unlikely that Defendant did not know of the Illinois Order and its prohibitions prior to April 13.2008. However, as in State v. McMullin, 136 S.W.3d 566, 573 (Mo.App.2004), the State did not adduce any evidence that Defendant had knowledge, legal or actual, of the Illinois Order or its contents. “[A] verdict cannot rest upon the piling of an inference upon an inference when there are no facts supporting the first inference.” Id. at 572 (emphasis in original).

The State, in a fallback position, also contends in its brief that even if the evidence did not establish that Defendant knew of the Illinois Order as of the incident of April 18, 2008, “it certainly established his knowledge of the order on April 28, 2008,” the date when he assaulted J.J., having been arrested on April 13, 2008 for violation of the Illinois Order. The State then proceeds to argue that even though Defendant was indicted on Count II for violating the Illinois Order on April 13, 2008, not “on or about April 13, 2008,” the indictment can be stretched to cover Defendant’s violation of the Illinois Order on April 23, 2008 when he assaulted J.J. because of the language of the verdict director for Count II. The State is being disingenuous. The stipulation did not address the issue of notice. The State failed to adduce readily obtainable evidence from the Illinois judicial proceedings. It failed to have J.J. testify that Defendant knew about the Illinois Order and its prohibitions. It seeks to stretch the law to cover its failure to attend to proving the elements of the offense by arguing that time is not of the essence for a charge of violating an order of protection. Point sustained.

In his second point relied on, Defendant argues that the trial court erred by abusing its discretion in admitting evidence of his prior 2006 battery against J.J. because it constituted inadmissible propensity evidence that was not legally or logically relevant, and which substantially prejudiced him, thereby denying him his constitutional due process rights.

The trial court has broad discretion to exclude or to admit evidence at trial. State v. Kemp, 212 S.W.3d 135, 145 (Mo. banc 2007). This Court will reverse the trial court’s ruling on the admissibility of evidence only if the trial court clearly abused its discretion. Id. Our review of the trial court’s ruling is for prejudice, not mere error, and we will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial. Id.

We need not decide whether or not the trial court erred in admitting the evidence regarding Defendant’s 2006 stabbing of J. J.’s hand that led her to seek and obtain an order of protection from the Illinois courts. Even if the trial court erred in admitting the evidence regarding Defendant’s battery against J.J. in 2006, he suffered no prejudice from the admission of the evidence. Absent a showing of prejudice, a trial court’s admission of immaterial and irrelevant evidence, even of other crimes, will not be reversed. State v. Simmons, 944 S.W.2d 165, 178 (Mo. banc 1997), cert. denied, 522 U.S. 953, 118 S.Ct. 376, 139 L.Ed.2d 293 (1997). Reversal is not mandated where the strength of the overwhelming evidence of guilt overcomes the presumption of prejudice from the erroneous admission of evidence. State v. Beal, 966 S.W.2d 9, 14 (Mo.App.1997); see also State v. Roberts, 948 S.W.2d 577, 592 (Mo. banc 1997), cert. denied, 522 U.S. 1056, 118 S.Ct. 711, 139 L.Ed.2d 652 (1998). The evidence of Defendant’s guilt on Count I is overwhelming and uncontroverted. J.J. testified about her encounters with Defendant on April 23, 2008 prior to the assault. Williams and Kleinhanf saw Defendant kick J.J. and jump on her head, and they identified him at the scene and in court as her assailant. The blood on Defendant’s shoes matched JJ.’s DNA. Any potential error in the admission of evidence of other crimes, therefore, was without prejudice. Point denied.

The judgment of the trial court as to Count I, felony first-degree domestic assault, is affirmed, and is reversed as to Count II, the misdemeanor violation of the Illinois Order.

SHERRI B. SULLIVAN, P.J., and LAWRENCE E. MOONEY, J., concur.

      . Unless noted otherwise, all other statutory citations are to RSMo 2000.

      . While prosecutorial zeal is admirable, the prosecutor’s job is not merely to convict, but to seek justice. This is duly noted in the comment to Rule 4-3.8, which provides that:
      A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided on the basis of sufficient evidence.

        See also State v. Banks, 215 S.W.3d 118, 119-20 (Mo. banc 2007).

      . We note that the only evidence that Defendant was actually arrested for violating the Illinois Order on April 13, 2008, is JJ.'s response when asked "Do you know what Victor was arrested for that day?” She replied "Breaking the order of protection.”