author: LAMBERT, Senior Judge.

text:
    WELLS FARGO FINANCIAL KENTUCKY, INC., Appellant, v. John Robert THOMER; Dawn Alexis Thomer; United States of America; and Mooring Tax Asset Group, Appellees.
    No. 2008-CA-001837-MR.
    Court of Appeals of Kentucky.
    April 23, 2010.
    Rehearing Denied June 28, 2010.

      David A. Stringer, Cincinnati, OH, for appellant.
    Robert E. Blau, Cold Spring, KY, for appellees, John Robert Thomer and Dawn Alexis Thomer.
    Before KELLER and NICKELL, Judges; LAMBERT, Senior Judge.

      . Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

   OPINION

LAMBERT, Senior Judge.

This appeal pits competing lien priority claimants against one another. Appellant, Wells Fargo Financial Kentucky, Inc. (Wells Fargo), claims that its mortgage is superior by virtue of the future advance clause of the mortgage, while Appellees, John Robert Thomer and Dawn Alexis Thomer (Thomers), claim that their judgment lien achieved superior status when a new promissory note and mortgage were executed in favor of Wells Fargo. Our resolution of this case will depend upon the language of the relevant instruments, statutory and decisional law, and the Restatement (Third) of Property.

The facts are relatively simple. In March of 2000 James M. Grimme and Kathleen A. Grimme borrowed $152,000 from Norwest Financial America, Inc., Wells Fargo’s predecessor, and, to secure the loan, placed a mortgage lien on their residence located in Alexandria, Kentucky. The following year, in October of 2001, the Thomers obtained a judgment lien against the Grimmes’ property for $15,000, which arose from an unrelated private loan for the purchase of a truck. The next year, in August of 2002, the Grimmes executed a subsequent promissory note and mortgage in favor of Wells Fargo in the amount of $158,000. In due course, the Grimmes filed a bankruptcy petition and they are not parties to this proceeding. The contest before this court is between Wells Fargo and the Thomers and the issue is which of the parties has a superior lien on the Grimmes’ real property.

The trial court granted summary judgment to the Thomers. It duly noted the language of the 2000 mortgage instrument which states that the mortgage “also secures payment of any future note or notes executed and delivered to mortgagee by mortgagor after the date hereof’ but concluded that “the 2002 note paid the 2000 note in full.” The trial court continued, “[t]he indebtedness evidenced by the 2002 note is not a renewal as a renewal has the effect of ‘merely extending the time for payment rather than [being] entirely new obligations; ... a renewal note does not extinguish the original debt without some evidence that the parties so intended.’ American Fidelity Bank [& Trust Co. v. Hinkle, 747 S.W.2d 620, 622 (Ky.App.1988) ].” The trial court reasoned “Here, the 2002 note did not simply extend the time for payment of the original note. Rather, it not only paid the original obligation in full, it represented the borrowing of a larger amount of money by the Grim-mes. There was no indication in the 2002 note that referenced the 2000 mortgage or Note or that it was a renewal of the 2000 Note.” The trial court also properly noted that intent is the essential element in proving a novation but recognized that “[w]hen the Grimmes signed the second note in 2002 for approximately $158,000,00, they paid the 2000 note in full on the assumption that the future advances clause in the mortgage would secure the $158,000.00 second note.”

From the foregoing, it is clear that the trial court viewed the execution and delivery of the 2002 note and mortgage as payment in full of the 2000 note and exoneration of the mortgage securing it. The trial court was persuaded that a novation had occurred in the Wells Fargo and Grimmes transaction, notwithstanding its paradoxical comment with respect to the Grimmes’ assumption as to the effect of the future advance clause.

The parties and the trial court place considerable reliance on Nolin Production Credit Ass’n v. Citizens National Bank of Bowling Green, 709 S.W.2d 466 (Ky.App.1986), and we have carefully considered their analysis of that decision. While certain language in the Nolin case is helpful, the facts differ so significantly that the holding is far from controlling here. No-lin dealt with an original mortgage on property in Nelson County executed by a husband and wife. The subsequent mortgage was on real property in three other counties and only the husband (following a divorce) signed the materially different subsequent note and mortgage. Moreover, the amount of the subsequent note far exceeded the future advance clause in the prior mortgage. In view of these facts, the court’s holding that a novation occurred is rather unremarkable.

In White v. Winchester Land Development Corp., 584 S.W.2d 56, 63 (Ky.App.1979), this court addressed the doctrine of novation as follows:

Kentucky law is well-settled that a renewal note will not extinguish an obligation. Cantrill Construction Co. v. Carter, 418 F.2d 705 (6th Cir.1969), citing Porter v. Bedell, 273 Ky. 296, 116 S.W.2d 641 (1938). A renewal note is thus distinguished from a novation which does operate to extinguish an original debt. Whether a second note is a renewal of the original obligation, or a novation thereof, depends upon the intentions of the parties. 11 Am.Jur.2d Bills & Notes, ss 307, 914. The question of intention in such cases often turns, to a large extent, on the terms of the hy-pothecation or pledge agreement.

From White and numerous other authorities, we are instructed that an extension of additional credit under the future advance clause of a prior mortgage does not invalidate or reprioritize the security interest given provided the possible additional credit is disclosed in the mortgage instrument.

Kentucky statutes make provision for the formal release of mortgages and liens by marginal release or deed of release. KRS 382.360. However, as a matter of law, whether or not a formal release occurs, upon full payment of the indebtedness, the instrument of record becomes a nullity. Warning’s Ex’r v. Tabeling, 280 Ky. 232, 133 S.W.2d 65 (1939). A recorded mortgage serves the purpose of establishing the lender’s interest in the land that secures the debt and notice to the world of the lien created thereby. KRS 382.520. Thus, we must focus upon the indebtedness rather than the mortgage for without the debt, there is no mortgage. “[W]hen the debt is extinguished or barred by statute of limitations or otherwise, the mortgage is likewise at an end.” Warning’s Ex’r, 133 S.W.2d at 67. However, the mortgage may be relevant evidence as to the parties’ intent. From the foregoing, therefore, the controlling question is whether the evidence shows that the underlying indebtedness of $152,000 was paid, thereby extinguishing the mortgage securing it, or whether the underlying indebtedness remained and continued to support the original mortgage.

The amount of the 2000 debt was $152,000. The amount of the 2002 debt was $158,000. The 2002 note shows that from the $158,000, $141,000 was the “amount paid on your [Grimmes’] account,” and that additional sums were advanced. At the time of the 2002 transaction with Wells Fargo, the Grimmes signed an ac-knowledgement of their right to cancel that contained the following language: “You are entering into a new transaction to increase the amount of credit provided to you. We acquired a mortgage, lien or other security interest on your home under the original transaction and we will retain that mortgage, lien or other security interest in the new transaction.” Moreover, the HUD-1A Settlement Statement executed by the Grimmes refers to ‘Wells Fargo Financial non-cash disbursement” of $141,000. From these instruments, we have absolutely no doubt that $141,000 of the 2002 loan was the same debt as the 2000 loan. The loans were merely consolidated and additional sums were advanced.

As previously stated, a contract novation relieves parties of the obligations thereunder and results in a new agreement, while an extension of additional credit under an existing obligation is merely an amendment and continuation of the original agreement. The burden to establish novation is on the party claiming its occurrence. North Western Mut. Life Ins. Co. v. Eddleman, 247 Ky. 116, 56 S.W.2d 561 (1932). As to the substantive law of novation, Eddleman quotes from 46 Corpus Juris 605 as follows:

“Similarly the original creditor must assent to the transaction, for, in the absence of such consent, the debtor could not by his own act discharge his obligation and divest the creditor of his claim.” On the next page (606) section 50, the text says: “Whether a novation has been accomplished or not depends upon the intention of the parties. This intent is the controlling element in determining the question, and unless the transaction was intended to extinguish the old obligation by substituting the new one therefor, a novation is not effected.”

Eddleman, 56 S.W.2d at 562. A similar view was expressed in American Fidelity Bank & Trust Co. v. Hinkle, 747 S.W.2d 620, 623 (Ky.App.1988), as follows: “When there is asserted a discharge without valuable consideration, there must be evidence from which a fact finder could find intent by the parties that the obligor be released.” (Emphasis in original.)

Applying these authorities to the case at bar, the Thomers failed to show that Wells Fargo and the Grimmes intended a novation and intended to effectively subordinate Wells Fargo’s first lien position with respect to the Grimmes’ mortgage. From the documents we have examined, we discern no such intent and we can think of no rational reason for Wells Fargo to have impaired its own security without consideration. All of the evidence supports the conclusion that the original indebtedness was merely consolidated and increased by means of the 2002 note. It is worthy of comment that the 2000 mortgage was not released of record. As such, we must conclude that the trial court erred in its conclusion to the contrary.

Our view in this regard is fortified by the breadth of KRS 382.520. Sections (1) and (2) broadly protect mortgagees where renewals and extensions of loans are made. Section (2) provides that the mortgage originally executed

may secure any additional indebtedness, whether direct, indirect, existing, future, contingent, or otherwise, to the extent expressly authorized by the mortgage, if the mortgage by its terms stipulates the maximum additional indebtedness which may be secured thereby. Except as provided in subsection (3) of this section, the mortgage lien authorized by this subsection shall be superior to any liens or encumbrances of any kind created after recordation of such mortgage, even to the extent of sums advanced by a lender with actual or constructive notice of a subsequently created lien[.]

This language reveals overwhelming legislative intent to protect the interest of mortgage lenders. More modestly, Bank of Maysville v. Brock, 375 S.W.2d 814, 816 (Ky.1964), states the proposition “It is sufficient if the mortgage clearly shows it is to stand as security for both an original loan and for such additional indebtedness as may arise from future dealings between the parties.”

We have carefully examined the Restatement (Third) of Property, Mortgages § 7.3 (1997), as it addresses the relationship and priority of senior mortgages visa-vis junior lien interests. This section duly notes circumstances in which the junior lienholder is materially prejudiced by subsequent loans, interest rate changes, or other changes in the senior mortgage. Relevant to the case at bar is § 7.3(b):

If a senior mortgage or the obligation it secures is modified by the parties, the mortgage as modified retains priority as against junior interest in the real estate, except to the extent that the modification is materially prejudicial to the holders of such interest and is not within the scope of a reservation of right to modify as provided in Subsection (c).

The comment that follows § 7.3 discusses various types of transactions; i.e., construction mortgage loans, farm loans, replacement loans, and the like. Unmistakably, the comment articulates the view that lien priorities should be maintained unless there is demonstrable prejudice and lack of notice of the right to modify the senior mortgage.

Where the original mortgage clearly states that it secures future advances and specifies no maximum monetary amount, the intervening lienor is not materially prejudiced. Since the inter-venor takes its lien on notice that future advances are possible, it cannot validly claim injury based on the fact that the replacement mortgage exceeds the pre-release balance of its predecessor.

Restatement (Third) of Property, Mortgages § 7.3, cmt. b (1997).

We acknowledge discomfort in allowing Wells Fargo to recover sums in excess of the balance of its loan after the date the Thomers’ judgment lien was filed. The record reveals that upon the 2002 consolidation of the loans, there was a balance of $141,000 and presumably the balance was somewhat greater when the judgment lien was recorded. A proper examination of the real estate records by Wells Fargo would have revealed that the judgment lien was filed some ten months prior to the 2002 transaction. The Restatement (Third) of Property view discussed hereinabove recognizes that in certain circumstances a junior lienor may be prejudiced by the holder of the senior mortgage, and the Thomers appear to have been prejudiced by the increase of the indebtedness from $141,000 to $158,000. However, the Thomers cannot satisfy the second prong of the Restatement view. They cannot show that the extension of additional credit was not within the scope of the future advance clause of the original mortgage. See KRS 382.520. In fact, the original mortgage provides that the maximum indebtedness secured by the mortgage could increase to the sum of $200,000.

The trial court decided this case by summary judgment. It determined that the requirements of Kentucky Rules of Civil Procedure (CR) 56.03 were met and applied Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky.1991). It properly recognized that issues of fact should not be decided and that the evidence of record should be examined to discover whether there were genuine issues of fact. We agree with the trial court that this was a summary judgment case. As shown hereinabove, however, we disagree as to which party should have prevailed.

For the foregoing reasons, the judgment of the Campbell Circuit Court is reversed and this cause remanded for further consistent proceedings.

NICKELL, Judge, concurs.

KELLER, Judge, concurs in result only.

      . All sums of money are rounded down to the nearest one thousand. Exact amounts and exact dates are unnecessary for resolution of the legal issues.

      .There is no dispute that by virtue of merger or acquisition Norwest Financial and Wells Fargo are the same party.


source: Caselaw Access Project

author: WILLIAM RAY PRICE, JR., Chief Justice. RICHARD B. TEITELMAN, Judge,

license: Public Domain

text:
    Daniel MARGIOTTA, Appellant, v. CHRISTIAN HOSPITAL NORTHEAST NORTHWEST d/b/a Christian Hospital, and BJC Health System, Respondents.
    No. SC 90249.
    Supreme Court of Missouri, En Banc.
    Feb. 9, 2010.

      Feme P. Wolf, D. Eric Sowers, M. Beth Fetterman, Sowers & Wolf, LLC, St. Louis, for Appellant.
    JoAnn T. Sandifer, Mark G. Arnold, Michael P. Nolan, Christine F. Miller, Husch Blackwell Sanders LLP, for St. Louis, for Respondents.
   WILLIAM RAY PRICE, JR., Chief Justice.

I. Introduction

Daniel J. Margiotta, an at-will medical image technician, brought a wrongful termination action against his former employer, Christian Hospital Northeast Northwest (“Hospital”), alleging that the Hospital terminated him for reporting violations of federal and state regulations. The trial court granted summary judgment in favor of the Hospital. The judgment is affirmed.

II. Facts and Procedural Posture

A. The Procedure for Summary Judgment 1

The required procedure for summary judgment motions is found in Rule 74.04. The party seeking summary judgment must attach “a statement of uncon-troverted material facts ... [stated] with particularity in separately numbered paragraphs ” and supported “with specific references to the pleadings, discovery, exhibits, or affidavits.” Rule 74.04(c)(1) (emphasis added). The responding party must then “admit or deny each of the movant’s factual statements in numbered paragraphs” based on the record. Rule 74.04(c)(1). The response “may also set forth additional material facts that remain in dispute presented in consecutively numbered paragraphs,” to which the movant must respond with a supplemental statement that controverts each factual assertion from the record. Id. “A denial may not rest upon the mere allegations or denials of the party’s pleading.” Rule 74.04(c)(2). This procedure is not discretionary; it is mandatory and must be followed.

B. Uncontroverted and Controverted Facts

It is uncontroverted that Daniel Margi-otta was an at-will medical technician in the Hospital’s CT scan unit from April 2005 until his termination on December 8, 2007. Although the remaining facts are controverted, they are not material to the judgment as a matter of law and serve only to provide context for this case.

The Hospital alleged that it terminated Margiotta because he had a violent outburst on December 6, 2007. In that incident, Margiotta reportedly yelled at coworkers in front of a patient and threw a pillow across the room, knocking a canister off the wall. Margiotta denies that the incident was violent or that he engaged in aggressive behavior.

In contrast, Margiotta alleges he was terminated because he continuously reported incidents of safety violations pertaining to patient care to his supervisors. Margiotta claims that three separate incidents led to his termination. First, in June or July 2005, he reported to supervisors that patients were being left unattended in the Hospital’s hallways. Second, during the fall of 2005, he complained that the Hospital would use only one orderly to transfer a patient from the stretcher to the CT scanning table, which, in one incident, led to a patient being dropped. Third, sometime between July and September 2005, he reported that a pregnant woman underwent a CT scan, a practice he considered unsafe.

Although the dates of these reports predate his termination by almost two years, Margiotta argued that the Hospital retaliated against him for reporting these incidents by terminating him. Accordingly, Margiotta brought a cause of action against the hospital for wrongful termination of an at-will employee under the following regulations:

Margiotta points to a federal and a Missouri regulation as being at issue:

The patient has the right to receive care in a safe setting. 42 C.F.R. 482.13(c)(2). Each hospital shall develop a mechanism for the identification and abatement of occupant safety hazards in their facilities. Any safety hazard or threat to the general safety of patients, staff or the public shall be corrected. 19 C.S.R. 30-20.108(3).

Christian Hospital filed a motion for summary judgment arguing, first, that Margiotta did not prove that the reporting of violations was the exclusive cause of his termination and, second, that the regulations at issue did not constitute clear mandates of public policy.

The trial court granted summary judgment on both grounds. This Court has jurisdiction. Mo. Const, art. V, sec. 10.

III. Analysis

A. Standard of Review

This Court reviews the trial court’s granting of summary judgment de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). An appellate court can sustain the trial court’s judgment on any ground as a matter of law, even if different than one posited in the order granting summary judgment. ITT Commercial Fin., 854 S.W.2d at 387-88.

B. The Atr-Will Employment

The at-will employment doctrine is well-established Missouri law. Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661 (Mo.1988); Dake v. Tuell, 687 S.W.2d 191 (Mo.1985); Amaan v. City of Eureka, 615 S.W.2d 414 (Mo.1981). Absent an employment contract with a “definite statement of duration ... an employment at will is created.” Luethans v. Washington University, 894 S.W.2d 169 (Mo.1995); McCoy v. Spelman Memorial Hosp., 845 S.W.2d 727 (Mo.App.1993). An employer may terminate an at-will employee “for any reason or for no reason.” Crabtree v. Bugby, 967 S.W.2d 66, 70 (Mo. banc 1998); see also McCoy v. Caldwell County, 145 S.W.3d 427, 429 (Mo. banc 2004); Hansome v. Northwestern Cooperage Co., 679 S.W.2d 273, 275 n. 2 (Mo. banc 1984); Johnson, 745 S.W.2d at 662; Dake, 687 S.W.2d at 192-93; Amaan, 615 S.W.2d at 415. The at-will doctrine is “[r]ooted in freedom of contract and private property principles, designed to yield efficiencies across a broad range of industries.” James A. Sonne, Firing Thoreau: Conscience and At-Will Employment, 9 U. Pa. J. Lab. & Emp. L. 235 (2007); Richard A. Epstein, In Defense at the Contract at Will, 51 U. Chi. L.Rev. 947, 953-58 (1984).

However, the at-will doctrine is limited in certain respects. An employer cannot terminate an at-will employee for being a member of a protected class, such as “race, color, religion, national origin, sex, ancestry, age or disability.” Section 213.055, RSMo. Supp.2005. In addition, Missouri recognizes the public-policy exception to the at-will-employment rule. Fleshier v. Pepose Vision Institute, Inc., 304 S.W.3d 81, 92 (Mo. banc 2010); Adolphsen v. Hallmark Cards, Inc., 907 S.W.2d 333 (Mo.App.1995).

C. The Public Policy Exception for Wrongful Discharge

The public policy exception to the at-will employment rule, often called the wrongful discharge doctrine, is very narrowly drawn. An at-will employee may not be terminated for refusing to perform an illegal act or reporting wrongdoing or violations of law to superiors or third parties. See Porter v. Reardon Mach. Co., 962 S.W.2d 932 (Mo.App.1998); See also Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859 (Mo.App.1985).

1. Well Established and Clearly Mandated Public Policy

It is well-settled that public policy is not found “in the varying personal opinions and whims of judges or courts, charged with the interpretation and declaration of the established law, as to what they themselves believe to be the demands or interests of the public.” In re Rahn’s Estate, 316 Mo. 492, 501, 291 S.W. 120, 123 (Mo.1926). Therefore, a wrongful discharge action must be based on a constitutional provision, a statute, a regulation based on a statute or a rule promulgated by a governmental body. See Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661, 663 (Mo. banc 1988). Absent such explicit authority, the wrongful discharge action fails as a matter of law. Id. Moreover, not every statute or regulation gives rise to an at-will wrongful termination action. See, e.g., Lay v. St. Louis Helicopter Airways, Inc., 869 S.W.2d 173 (Mo.App.1993).

A vague or general statute, regulation, or rule cannot be successfully pled under the at-will wrongful termination theory, because it would force the court to decide on its own what public policy requires. See id. Such vagueness would also cause “the duties imposed upon employers [to] become more vague” and create difficulties “for employers to plan around liability based on the vagaries of judges.” Timothy Heinz, The Assault on the Employment at Will Doctrine, 48 Mo. L.Rev. 855, 876 (1983).

A Reporting Violations of Law: Whistleblowing

Margiotta claims that he falls into the second theory of wrongful discharge, that of reporting violations of law or public policy to his superiors, commonly referred to as “whistleblowing.” Lynch v. Blanke Baer & Bowey Krimko, Inc. 901 S.W.2d 147, 150 (Mo.App.1995). For Margiotta to prevail, he must show that he “reported to superiors or to public authorities serious misconduct that constitutes a violation of the law and of ... well established and clearly mandated public policy.” Id. (emphasis added).

“The mere citation of a constitutional or statutory provision in a [pleading] is not by itself sufficient to state a cause of action for retaliatory discharge, the plaintiff must demonstrate that the public policy mandated by the cited provision is violated by the discharge.” 82 Am.Jur.2d § 61 citing Fellhauer v. City of Geneva, 142 Ill.2d 495, 154 Ill.Dec. 649, 568 N.E.2d 870 (1991); See generally Johnson, 745 S.W.2d at 663. Generally, there is no whistleblowing protection for an employee who merely disagrees personally with an employer’s legally-allowed policy. Daniel P. Westman, Whistleblowing the Law of Retaliatory Discharge, 112(1991). See also 82 Am.Jur.2d § 54.

However, the violation of the applicable authority need not result in criminal sanctions. Whether the violation results in civil fines, injunctions, or disciplinary action against a professional license is immaterial to the wrongful discharge action. Moreover, as our companion opinion Fleshner v. Pepose Vision Institute, Inc., announced, “there is no requirement that the violations that the employee reports affect the employee personally, nor that the law violated prohibit or penalize retaliation against those reporting its violation.” 304 S.W.3d at 97. The pertinent inquiry here is whether the authority clearly prohibits the conduct at issue in the action.

An illustration of this principle was discussed in Lay v. St. Louis Helicopter Airways, Inc., where a helicopter pilot alleged that he was terminated because he refused, against his employer’s wishes, to make three flights he believed to be in violation of FAA regulations. 869 S.W.2d at 175. The regulation he cited mandated that “member’s pilots will exercise their best judgment to insure a maximum safety factor at all times.” Id. The court found that regulation too vague and noted that the pilot did not cite to any specific regulation showing the flights unsafe. Id.

IV. Margiotta’s Claim

The two regulations that Margiot-ta cites are similarly vague statements, and he directs this Court to no specific regulations that proscribe the conduct at issue in the allegedly reported incidents.

Margiotta relies, in part, on Boyle v. Vista Eyewear, Inc. the originating authority of the wrongful discharge action, 700 S.W.2d 859 (Mo.App.1985). Boyle is inapposite to the facts and regulations present. In that case, an eye glass manufacturing employer instructed one of its at-will employees to never perform tests to ensure the lens would not shatter so that the company could turn around orders faster. Id. at 862. A Food and Drug Administration regulation “require[d] all eye glass manufacturers to test all glass lenses for their resistance to breaking or shattering before such lenses may be sold or distributed to the public.” Id. The employee consistently complained to her employer, refused to comply with the order, and reported the violation to the FDA and OSHA. She was ultimately terminated. Id. at 863. The employee in Boyle reported a clear violation of a regulation that explicitly forbade the actions of the eyeglass manufacturer. This did not occur in the instant.

Margiotta first relies on a federal regulation. “The patient has the right to receive care in a safe setting.” 42 C.F.R. 482.13(c)(2). The Department of Health and Human Services enacted this regulation pursuant to federal statutory authority. See 42 U.S.C. §§ 1302, 1395hh, and 1395rr (2009). This regulation clearly empowers patients to assert their right to safety, and reported cases in other jurisdictions recognize this. The regulation is personal to the patient. No textual part grants protection to employees or requires specific conduct by an employee such as an affirmative duty to report violations. Most importantly, it does not specifically proscribe the three incidents Margiotta reported. This regulation is too vague to support Margiotta’s wrongful discharge action.

The second regulation Margiotta cites was enacted by Missouri’s Department of Health and Senior Services pursuant to statutory authority. Sections 192.006 and 197.080, RSMo. 2000, and 197.154, RSMo. Supp.2005. The regulation states that “[e]ach hospital shall develop a mechanism for the identification and abatement of occupant safety hazards in their facilities. Any safety hazard or threat to the general safety of patients, staff or the public shall be corrected.” 19 C.S.R. 30-20.108(3).

This regulation is not applicable in the present case. The regulation appears in a section titled “Fire Safety, General Safety and Operating Features.” Id. The other parts of the regulation speak to “disaster plans” and hospital construction and remodeling. 19 C.S.R. 30 — 20.108(1)—(4). This regulation clearly deals with building safety, not patient treatment. Margiotta’s “mere citation” to this regulation without a demonstration of how the reported conduct violated it cannot form the basis for a wrongful discharge action.

What Margiotta asks this Court to do is to grant him protected status for making complaints about acts or omission he merely believes to be violations of the law or public policy. The public policy exception to the at-will doctrine is not so broad. A legal duty will not be forced upon parties who have agreed to an at-will relationship; nor will an additional duty be forced upon parties who have agreed to a contractual employment relationship absent a sufficiently definite statute, regulation based on statute, constitutional provision, or rule promulgated by a government body that clearly gives notice to the parties of its requirements. The Hospital was entitled to judgment as a matter of law.

V. Conclusion

The trial court’s judgment is affirmed.

RUSSELL, WOLFF, BRECKENRIDGE, FISCHER and STITH, JJ., concur; TEITELMAN, J., dissents in separate opinion filed.

RICHARD B. TEITELMAN, Judge,

dissenting.

The principal opinion holds that Mar-giotta’s wrongful discharge claim fails because the regulations cited do not proscribe the specific conduct Margiotta reported to his superiors. Such specificity is not required. What is required is that the regulation express a clear and important public policy. The regulations in this case express a clear and important public policy requiring hospitals to take steps to ensure patient safety. Procedures that result in patients being dropped off tables unquestionably involve matters included in the hospital’s regulatory obligation to provide a safe environment for its patients. Therefore, I respectfully dissent.

In Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859, 871 (Mo.App.1985), the court held that the public policy exception to at-will employment “provides that an at-will employee who has been discharged by an employer in violation of a clear mandate of public policy has a cause of action against the employer for wrongful discharge.” The clear mandate of public policy finds its source “in the letter and purpose of a constitutional, statutory, or regulatory provision or scheme ...” Kirk v. Mercy Hosp. Tri-County, 851 S.W.2d 617, 621 (Mo.App.1993)(quoting Boyle, 700 S.W.2d at 871). There is nothing in this longstanding formulation of the wrongful discharge action requiring a plaintiff to identify a regulation specifically proscribing the reported conduct. To the contrary, the cases recognize that a wrongful discharge action can be based on reported conduct that is prohibited by not only the “letter” of the law but also by the “purpose” of the law. This formulation of the wrongful discharge action recognizes the reality that many valid statutes or regulations provide general guidelines designed to regulate the unpredictable and nearly infinite array of specific fact patterns that fit within the regulatory purpose of the law. By requiring a plaintiff to identify a regulation that specifically proscribes the reported conduct, the principal opinion eliminates wrongful discharge actions based on conduct that, while not specifically proscribed by a regulation, is nonetheless clearly contrary to the purpose of the regulation. In these cases, the general statute or regulation, and therefore the definition of “public policy,” becomes clear when applied to the facts of a particular case.

The principal opinion avoids this conclusion by relying in large part on Lay v. St. Louis Helicopter Airways, Inc., 869 S.W.2d 173 (Mo.App.1993), to conclude that the regulation in this case is “too vague” and that Margiotta’s claim fails because he does not identify a regulation specifically proscribing the conduct at issue. Lay did not hold that the regulations at issue in that case were “too vague” to support a wrongful discharge action. Instead, Lay held that the pilot could not state a claim for wrongful discharge because the regulation did not (1) specifically prohibit the employer from discharging the pilot and (2) did not subject the pilot to criminal sanctions if he engaged in the activity required by the employer. Id. Neither of these conclusions is valid.

Lay cited no authority for this requirement that the regulation underlying a wrongful discharge action specifically must prohibit the employer from discharging the employee. If the regulation must prohibit the employer from discharging the employee, there would be no need for a common law wrongful discharge action because the employee’s “remedy would flow from any such alleged violation” of the regulation. Kirk, 851 S.W.2d at 620.

Similarly, there is no requirement that the regulation must subject the employee to criminal sanctions. Instead, as stated in Boyle, the regulation must express a clear mandate of public policy. While criminal sanctions are one means of enforcing public policy, public policy also can be enforced through mechanisms such as civil fines, injunctions or disciplinary action against a professional license. See, e.g., Kirk, 851 S.W.2d at 621 (failure to comply with nursing regulations exposed nurse to professional license discipline). The rationale in Lay is inconsistent with the purpose of the wrongful discharge cause of action and should not be followed.

In this case, the federal and state regulations cited by Margiotta set forth a clear mandate that hospitals adopt procedures to ensure their patients’ safety. These general safety concerns are illustrated specifically by Margiotta’s allegation that unsafe patient transfer practices caused a patient to be dropped off a table. There is no dispute that dropping patients poses a threat to patient safety. The importance of these regulations is magnified because many patients must rely entirely on the hospital employees to ensure that their right to basic personal safety and sustenance is met. An unconscious or incapacitated patient may be in no position to assert his or her right to safety or even recognize that safety has been compromised. Margiotta reported violations of safety regulations that constitute clear mandates of public policy. He should be given an opportunity to prove his case to a jury. I would reverse the grant of summary judgment to the defendants in this case.

      . Retaliation for filing a worker’s compensation action is also prohibited; however, it is controlled by specific statutory authority and is distinct from other wrongful discharge actions.

      . See NCED Mental Health, Inc. v. Kidd, 214 S.W.3d 28, 36 (Tex.App.El Paso 2006) (Patient bringing suit and citing violation of regulation due to rape by hospital staff while medicated.); Hubbs v. Alamao, 360 F.Supp.2d 1073 (C.D.Cal.2005) (mental patient pled regulation in section as part of an action under 42 U.S.C. 1983 due to disclosure of patient records).


author: WILLIAM RAY PRICE, JR., Chief Justice.

text:
    STATE of Missouri, et al., Respondents, v. Stephanie SPILTON, LCSW, Appellant.
    No. SC 90586.
    Supreme Court of Missouri, En Banc.
    June 29, 2010.

      Michael J. Sudekum and Alan S. Mandel of Schlueter, Mandel & Mandel LLP, St. Louis, for Appellant.
    Jeremiah J. Morgan and Stephanie Gwillim, Attorney General’s Office, Jefferson City, for respondents.
   WILLIAM RAY PRICE, JR., Chief Justice.

Because there is no genuine issue of material fact as to whether Stephanie Spil-ton knowingly violated the Medicaid fraud statute and because her constitutional claims fail, summary judgment for the state of Missouri is affirmed.

Facts and Procedural Background

The Missouri Medicaid Program (“the Program”) serves indigent and low-income people pursuant to section 208.201, RSMo (2000). Due to the high volume of claims received by the Program, it has set up a post-payment review system in which a sampling of the submitted claims are reviewed. Stephanie Spilton, who appeals here, is a clinical social worker who has been a licensed Missouri Medicaid Service Provider since 2001. As part of Spilton’s licensing procedure, she was required to affirm, in writing, that she would comply with Medicaid rules and regulations as required by the Division of Medical Services and the United States Department of Health and Human Services. These rules and regulations govern the submission of claims for payment, the disclosure of services rendered, and the retention of records. In conjunction with her licensing, the Division of Medical Services gave Spil-ton a unique Medicaid provider number by which she could submit claims to the Program for reimbursement. Spilton agreed that if she did not comply with the rules of the Program, she was not entitled to reimbursement for her claims.

In 2005, the Attorney General’s Medicaid Fraud Control Unit began an investigation into the claims Spilton submitted during 2004. The investigation revealed that Spilton had committed 325 separate violations of sec. 191.905.1(1), which prohibits knowingly presenting a claim for reimbursement that is false. The state filed suit against Spilton, alleging Medicaid fraud, breach of contract, unjust enrichment, and fraudulent misrepresentation.

In March 2007, after service of a subpoena in April 2006, Spilton met with the Medicaid Fraud Control Unit and ultimately wrote and signed a statement admitting that she submitted claims for services she did not provide. On March 15, 2007, she wrote: “I am responsible for illegal activities.” “I am aware I did not follow required procedure.” “I cannot explain in any way why I displayed the illegal behavior ... it was 100% wrong for many reasons.” “I accept full responsibility.” Spilton also confessed in an interview with Medicaid Fraud Unit investigators Robert Hyder II and Melinda Ochoa that she “created patient records” to corroborate the claims she submitted to the state for reimbursement. In October 2008, however, in her response to the state’s motion for summary judgment, Spilton asserted the Fifth Amendment privilege against self-incrimination.

In July 2009, the St. Louis County Circuit Court granted the state’s motion for summary judgment as to Medicaid fraud. Because the court provided complete relief to the state on count one, it overruled the motion as to the state’s other three counts. The trial court awarded the state actual damages in the amount of $45,385, civil penalties in the amount of $1,625,000, and, pursuant to sec. 191.905.12, treble damages in the amount of $136,155.

Spilton appealed the ruling to the court of appeals, arguing that summary judgment was improper because there was a genuine issue of material fact as to whether she “knowingly” submitted false claims, as required by sec. 191.905.1(1). In addition, she argued that the civil penalties delineated under sec. 191.905.12 violate the due process clauses of the Missouri and United States Constitutions. Her appeal was subsequently transferred to this Court pursuant to Mo. Const, art. V, sec. 11.

Jurisdiction

Because this case involves a challenge to the validity of a Missouri statute, this Court has exclusive jurisdiction. Mo. Const, art. Y, sec. 3.

Analysis

Standard of Review

Summary judgment is appropriate if there is “no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Rule 74.04(c)(6); Weinstein v. KLT Telecom, Inc., 225 S.W.3d 413, 415 (Mo. banc 2007). The required procedure for summary judgment motions is found in Rule 74.04. The party seeking summary judgment must attach “a statement of uncon-troverted material facts ... [stated] with particularity in separately numbered paragraphs” and supported “with specific references to the pleadings, discovery, exhibits, or affidavits.” Rule 74.04(c)(1). The responding party must then “admit or deny each of the movant’s factual statements in numbered paragraphs.” Rule 74.04(c)(1). Denials may not rest upon mere allegations. Rather, the response must “support each denial with specific references to the discovery, exhibits, or affidavits that demonstrate specific facts showing that there is a genuine issue for trial.” Id. The record is reviewed in the light most favorable to the party against whom judgment was entered. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371 (Mo. banc 1993).

The Statute

Section 191.905.1 sets out what acts constitute Medicaid fraud in Missouri and the civil and criminal sanctions for those acts. Subsections 191.905.1(1-3) provide that a violation occurs by:

1 “Knowingly presenting to a health care payer a claim for a health care payment that falsely represents that the health care payment is claimed was medically necessary, if in fact it was not,”

2 “Knowingly concealing the occurrence of any event affecting an initial or continued right under a medical assistance program to have a health care payment made by a health care payer ...,”

3 “Knowingly concealing or failing to disclose any information with the intent to obtain a health care payment to which the health care provider ... is not entitled, or to obtain a health care payment in an amount greater than what the health care provider ... is entitled.”

Subsection 191.900.8 defines “knowingly” to mean that the person “has actual knowledge of the information,” “acts in deliberate ignorance of the truth or falsity of the information,” or “acts in reckless disregard for the truth or falsity of the information.”

Subsections 191.905.12 and 14 set out the civil sanctions for violating the statute. Subsection 12 provides the civil penalties for violations of subsections 191.905.1(1-3):

12 “A person who violates subsections 1 to 3 of this section shall be liable for a civil penalty of not less than five thousand dollars and not more than ten thousand dollars for each separate act in violation ... plus three times the amount of damages which the state and federal government sustained because of the act of the person.”

Finally, subsection 191.905.14 adds:

14 “The attorney general may bring a civil action against any person who shall receive a health care payment as a result of a false statement or false representation of material fact made or caused to be made by that person. That person shall be liable for up to double the amount of all payments received by that person ... No civil action provided by this subsection shall be brought if ... civil penalties provided by subsection 12 ... have previously been ordered.”

Both subsections 12 and 14 provide the civil penalties for violating the Medicaid Fraud statute. While subsection 191.905.12 cross-references subsections 191.905.1(1-3) — and therefore provides civil penalties for knowing violations of the statute — subsection 191.905.14 provides civil penalties for unintentional violations of the statute.

Subsections 191.905(7-8) set out the criminal sanctions for violations of the statute:

7 “A person who violates subsections 1 to 3 of this section is guilty of a class C felony upon his or her first conviction, and shall be guilty of a class B felony upon his or her second and subsequent convictions

8 “Any natural person who willfully prevents, obstructs, misleads, [or] delays ... the communication of information or records relating to a violation of sections 191.900 to 191.910 is guilty of a class D felony.”

Medicaid Fraud under the Statute

For purposes of this ease, the elements of a claim under sec. 191.905.1(1) are as follows: (1) a health care provider must (2) knowingly (3) present a claim for payment that is (4) false. Sec. 191.905.1(1). Spilton does not dispute that she was a licensed health care provider, or that she submitted false claims for reimbursement. She only disputes that she acted knowingly.

Spilton argues that the state was not entitled to judgment as a matter of law. She claims that the trial court erred in granting summary judgment because there is a genuine issue of material fact as to whether she “knowingly” violated sec. 191.905.ld).

Spilton’s Summary Judgment Argument

It is settled Missouri law that the state can rely on circumstantial evidence to demonstrate the “knowing” element of fraud. Farr v. Hoesch, 745 S.W.2d 830, 832 (Mo.App.1988). This is because fraud, by its nature, is very difficult to prove by direct evidence. Allison v. Mildred, 307 S.W.2d 447, 453 (Mo.1957) (stating that fraud claims are “seldom capable of direct proof’). Here, the state set out, in numbered paragraphs, every material fact as to which it claimed there was no genuine issue. And, pursuant to Rule 74.04(c)(1), it made specific references to the record to demonstrate the lack of a genuine issue suitable for trial.

The state included in its motion for summary judgment both circumstantial evidence and direct evidence that Spilton violated sec. 191.905.1(1) 325 separate times. The state produced more than 300 copies of claims submitted by Spilton that stated, among other things, that she provided individual therapy she did not provide, that she spent longer periods of time with patients than she actually spent, that she followed Medicaid procedures when in fact she did not, and that she treated children she did not even see.

Additionally, the state produced affidavits from Medicaid Fraud Control Unit investigators in which they detailed Spil-ton’s confession to them that the claims she submitted for reimbursement contained false information. Spilton admitted to investigators Robert Hyder II and Melinda Ochoa that “she never provided any individual therapy to numerous recipients,” and that when she did provide therapy, “she did not provide it for the full time required by Medicaid rules and regulations.” She admitted to investigators Hy-der and Ochoa that “she submitted, or caused to be submitted, claims to Medicaid for non-qualifying, individual therapy for numerous recipients,” and that “she conducted therapy sessions ... but the children were not present ... [so they] could not be billed to Medicaid.” And, she admitted to investigators Hyder and Ochoa that “she created patient records which allegedly corroborated the claims submitted.”

Further, the state produced a voluntary statement, which Spilton wrote and signed after her interview with investigators, that said:

“I am responsible for illegal activities of at times not billing accurately. Specifically, I have billed for seeing a client individually, when in fact, I did not see (i.e., provide treatment to) the client. There were instances when I worked individually with the parent(s) and the client/child was not in the session ... in some cases the client/child was present but there were many times when the child was not present ... I am aware I did not follow required procedure for such treatment ... I cannot explain in any way why I displayed the illegal behavior I exhibited nor can I justify this behavior. It was 100% wrong for many reasons ... I accept full responsibility”

Pursuant to Rule 74.04(c)(2), a response to a motion for summary judgment must admit or deny each of the movant’s factual statements and “support each denial with specific references to the discovery, exhibits, or affidavits that demonstrate specific facts showing that there is a genuine issue for trial.” Spilton did not deny a single one of the state’s allegations in her response. Instead, she asserted the Fifth Amendment privilege against self-incrimination. While a failure to deny does not automatically entitle summary judgment to the moving party, it does “cause all factual assertions properly alleged and supported by the moving party to be considered as true.” Johnson v. Missouri Bd. Of Nursing Adm’rs, 130 S.W.3d 619, 626 (Mo.App.2004). Civil defendants who choose to assert their Fifth Amendment privilege take the risk that there will be “nothing to support [their] view of the case and a ... grant of summary judgment will be proper.” 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure, sec. 2018, at 288 (1994). Here, Spil-ton has simply not demonstrated that there is a genuine issue of material fact that would preclude summary judgment for the state. A factual dispute that is merely “argumentative, imaginary, or frivolous” is not enough to defeat summary judgment. ITT, 854 S.W.2d at 382.

Spilton argues in the alternative that if summary judgment was proper, she is not subject to the penalties proscribed in subsection 191.905.12 because it is applicable only to criminal prosecutions, not civil actions brought by the state of Missouri. Instead, she claims that she is subject only to the penalties set out in subsection 191.905.14. However, Spilton draws the wrong distinction between subsections 12 and 14. The plain reading of the statute is that subsection 12 provides civil penalties for knowing violations of the statute, and subsection 14 provides civil penalties for unintentional violations of the statute. Because violations of subsections 191.905.1(1-3) — the violations referenced in subsection 12 — require a “knowing” act, the civil penalties for those violations are steeper. There is no civil/criminal distinction. Therefore, because there is no genuine issue of material fact as to whether Spilton knowingly violated 191.905.1(1), she is liable for the penalties set out in subsection 12. There is nothing left for a jury to resolve.

Spilton’s Constitutional Argument

Spilton argues that the trial court erred in granting summary judgment in favor of the state because subsection 191.905.12 is unconstitutionally vague. Further, she claims that it violates due process and the prohibition on excessive fines. U.S. Const. Amend. XIV, VIII; Mo Const, art. I, sec. 21. This Court reviews constitutional challenges de novo. Smith v. Brown & Williamson Tobacco Corp., 275 S.W.3d 748 (Mo.App.2008).

Spilton brings a void-for-vagueness challenge to the section of the Medicaid Fraud statute that sets out the civil penalties for knowing violations. Subsection 191.905.12 says: “A person who violates subsections 1 to 3 of this section shall be liable for a civil penalty of not less than five thousand dollars and not more than ten thousand dollars for each separate act in violation.” Spilton argues that subsection 191.905.12 is impermissibly vague because it provides for a range of penalties without instructing the court whether to select the low or high end of the range in any specific case.

However, a statute that provides for a range of penalties is not constitutionally deficient. See e.g., Battis v. Hofmann, 832 S.W.2d 937, 941 (Mo.App.1992) (judge in landlord tenant dispute has discretion to impose penalty within statutory range provided by 535.300 RSMo 1986); Pratt v. Missouri Pac. Ry. Co., 139 Mo. App. 502, 122 S.W. 1125, 1129 (1909) (legislature intentionally gave jury a “wide range” of discretion in railroad negligence statute providing for damages between $2,000 and $10,000). A statute is presumed constitutional unless it “clearly and undoubtedly violates some constitutional provision and palpably affronts fundamental law embodied in the constitution.” Bd. Of Educ. of St. Louis v. State, 47 S.W.3d 366, 368-9 (Mo. banc 2001). A statute is not vague because it allows for judicial discretion in imposing penalties, but rather when its language does not convey, to a person of ordinary intelligence, adequate notice of what conduct is proscribed. Cocktail Fortune, Inc. v. Supervisor of Liquor Control, 994 S.W.2d 955, 957 (Mo. banc 1999). Where a law can be supported by “a reasonable or practical construction,” it will be valid. Id. Further, “laws imposing civil penalties rather than criminal are ... afforded more tolerance.” Harris v. Hunt, 122 S.W.3d 683, 689 (Mo.App.2003). The language of subsection 191.905(12) clearly puts all individuals on notice that if they violate subsection 191.905(1), they will be hable for at least $5,000 per violation.

Additionally, as it was applied to Spilton, subsection 12 was neither vague nor arbitrarily enforced. In void-for-vagueness claims, “the challenged language must be evaluated by applying it to facts in the present case.” Id. (quoting Cocktail Fortune, 994 S.W.2d at 958-9). Spilton received the lowest possible penalty allowed by the statute. A statute must provide “fair notice ... of the severity of the penalty that the state may impose.” Philip Morris v. Williams, 549 U.S. 346, 127 S.Ct. 1057, 1062, 166 L.Ed.2d 940 (2007) (quoting BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)). This statute does exactly that. There is no question that subsection 12 provides for at least a $5,000 fine per violation. Spilton got a $5,000 fine per violation. Her vagueness argument is without merit.

Finally, subsection 191.905.12 does not contravene the excessive fines provision of the Eighth Amendment or violate due process. Although the Missouri and United States Constitutions prohibit the imposition of excessive fines, the Missouri General Assembly has always had wide latitude to decide the severity of civil penalties for violations of law. Missouri Public Service Com’n v. Hurricane Deck Holding Co., 302 S.W.3d 786 (Mo.App.2010) (outside of constitutional limitations, setting the amount of penalties is within the discretion of the legislature); State v. Davis, 830 S.W.2d 27 (Mo.App.1992); Boonville Special Road Disk v. Fuser, 184 Mo.App. 634, 171 S.W. 962 (1914); Western Union Tel. Co. v. State of Indiana, 165 U.S. 304, 17 S.Ct. 345, 41 L.Ed. 725 (1897). Statutory civil penalties are different than jury-imposed punitive damages because statutes define, in advance, “the prohibited conduct and ... the legislative prescribed penalty.” Carpenter v. Countrywide Home Loans, Inc., 250 S.W.3d 697, 702 (Mo. banc 2008) (statute that provides treble damages for the unauthorized practice of law does not violate due process).

Further, statutes — like this one — that provide for treble damages in addition to actual damages sustained are not constitutionally invalid. Carpenter v. Countrywide Home Loans, Inc., 250 S.W.3d 697 (Mo. banc 2008) (holding that sec. 484.020(2), which awards treble damages for the unauthorized practice of law, does not violate due process).

Civil fines within statutory limits will not be considered excessive, as a matter of law, when the statute authorizing the punishment is valid and when the punishment imposed is within the range prescribed by the legislature. State v. Polley, 2 S.W.3d 887, 894 (Mo.App.1999); State v. Repp, 603 S.W.2d 569, 571 (Mo. banc 1980) (punishment within the range prescribed by statute cannot be considered excessive). A statutory punishment will not be considered an excessive fine in contravention of the Eighth Amendment unless it is so disproportionate as to “shock the moral sense of all reasonable [persons].” Barker v. Barker, 98 S.W.3d 532, 534 (Mo.banc 2003). When a litigant receives the lowest possible penalty proscribed by a statutory range, as Spilton did, the penalty is not excessive. Missouri Public Service Commission v. Hurricane Deck Holding Company, 302 S.W.3d 786, 792 (Mo.App.2010) (because the penalty assessed was the lowest amount permitted by the statute, it was not “so disproportionate as to shock the moral sense of all reasonable men”).

Finally, it is settled Missouri law that an assessment of $5,000 per violation is not so disproportionate as to constitute cruel and unusual punishment. State v. Trader Bobs, 768 S.W.2d 183, 188 (Mo.App.1989) (holding that statute that provides for a fine of $5,000 per violation is not excessive). This Court is unpersuaded that the $5,000-per-violation penalty assessed against Spilton is so grossly excessive as to shock the conscience. A litigant attacking the constitutional validity of a statute bears “an extremely heavy burden.” Linton v. Mo. Veterinary Med. Bd., 988 S.W.2d 513, 515 (Mo. banc 1999); State ex rel. Westfall v. Mason, 594 S.W.2d 908 (Mo. banc 1980) (“When considering the constitutionality of a punishment statute enacted by our legislature, we presume its validity and those who seek to invalidate it bear a heavy burden of demonstrating that it is ... excessive”). Spilton has not met that burden.

Conclusion

Because Spilton’s arguments fail as a matter of law, and because the trial court did not err in granting summary judgment for the state of Missouri, the judgment is affirmed.

All concur.

      . All references to Sections 191.900 and 191.905 are to RSMo (Supp. 2009).

      . Section 191.905 was amended in 2007. Although Spilton committed the violations in 2004, all parties refer to the subsection numbering as reflected in the 2009 Supplement, so this Court will do the same. There are no substantive differences in subsections 1, 12, or 14 (formerly 1, 11, and 13) between the original statute and the statute as amended.

      . On appeal, the parties only dispute the trial court order as to count one.

      . This is the relevant provision to Spilton’s case.

      . Subsection 12 also provides, however, that if the person immediately and fully cooperates with investigators, damages shall be reduced to two times the amount sustained by the government. Emphasis added.

        . Spilton makes this argument in her first point relied on. This Court will take her second and third points relied on together, as they both go to the validity of subsection 191.905.12.

      . Spilton does provide, in the written confession, a reason for this. She says that “many families were helped more effectively by my working with the parent(s) [alone]."' She also affirms in the statement that she will "never, never, never [again] exhibit illegal behavior,” and that she “wishes to pay back to Medicaid what [she] owe[s] them.”

      . Though this Court does not need to reach this issue, a trial judge may draw an adverse inference from a litigant's assertion of the Fifth Amendment privilege in a civil case. Johnson, 130 S.W.3d 619 (when a defendant remains silent in the face of facts established by the other party, the judge may infer that the defendant is unable to deny the allegations). It was proper for the trial court to adopt an adverse inference from Spilton’s assertion of the privilege.

      . Emphasis added.

      . The term "fine” denotes "payment extracted by the government and payable to the government.” Lilley v. State, 920 F.Supp. 1035, 1044 (E.D.Mo.1996).


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    STATE of Missouri ex rel. DOLGENCORP, INC., d/b/a Dollar General Stores, Relator, v. The Honorable Stephen R. SHARP, Respondent, and City of Campbell, Missouri, and William “Buck” Riley, Defendant.
    No. SD 29398.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 4, 2010.
    Jeffrey A. Mullins, Matthew M. Hogan, Lenexa, KS, for Relator.
    W. Tom Norrid, Springfield, MO, for Respondent.
    Albert M. Spradling, III, Cape Girar-deau, MO, for Defendant.
   NANCY STEFFEN RAHMEYER, Judge.

On March 19, 2009, this Court issued an opinion in this cause. On December 22, 2009, the Supreme Court of Missouri issued an order sustaining an application for transfer to that court and retransferring the cause to this Court “for reconsideration in light of J. Michael McCracken v. Wal-Mart Stores East, LP, [298 S.W.3d 473 (Mo. banc 2009).]” The original opinion of this Court, which follows, is now readopted and reissued with attribution to the Supreme Court’s McCracken opinion.

This request for a Writ of Prohibition stems from a case in which William and Carolyn Flowers (“Plaintiffs”) filed a Wrongful Death/Negligence Petition for Damages against several defendants, including Dolgencorp, Inc., d/b/a Dollar General Stores (“Relator”), based on the death of their daughter, Kasi Flowers (“Daughter”). The petition alleged that on August 12, 2006, Daughter was employed by Relator. At approximately 1:22 p.m. on that date, a man entered the Dollar General store where Daughter was working, chased Daughter, and attempted to assault her. At approximately 6:45 p.m., the man reentered the store and shot and killed Daughter.

Relator filed an Answer to the Petition for Damages, raising as an affirmative defense that the Petition should be dismissed for lack of subject matter jurisdiction as found in Rule 55.27(a)(1) due to the fact that section 287.120 of Missouri’s Workers’ Compensation Law provides the exclusive remedy for injured employees. Relator also filed a Motion to Dismiss based upon the court having a lack of jurisdiction over the subject matter of the case pursuant to the statutory bar of section 287.120. The Honorable Stephen R. Sharp (“Respondent”) denied the Motion to Dismiss.

Relator filed a Petition for Writ of Prohibition to prevent Respondent from taking further action in the underlying case brought by Plaintiffs. This Court entered a Preliminary Order in Prohibition. Relator requests that we make the Preliminary Order in Prohibition absolute and prevent Respondent from taking any further action other than granting Relator’s Motion to Dismiss because section 287.120 provides the exclusive remedy for injured workers. Respondent counters that Relator is not entitled to an order prohibiting Respondent from taking action in the case because “[f]urther discovery must be done to determine what effect the initial assault upon [Daughter] on the afternoon of August 12, 2006 had upon her employment status” at the time of her death.

In a recent opinion, the Supreme Court held that the trial court has subject matter jurisdiction in a common law tort case. In McCracken, the plaintiff filed suit against the defendant, alleging that while the plaintiff was making a delivery to the defendant’s store, one of the defendant’s employees negligently injured the plaintiff. Id. at 476. The defendant filed an answer but did not assert an affirmative defense based on the exclusive workers’ compensation remedy provided by section 287.120. Id. at 475. The defendant also filed a motion to dismiss, asserting that the plaintiff was the defendant’s employee and, therefore, the exclusive workers’ compensation remedy provided by section 287.120 deprived the trial court of subject matter jurisdiction. Id. 475-76. The trial court granted the motion to dismiss based upon lack of subject matter jurisdiction. Id. at 476.

The Supreme Court reversed and remanded that decision based on its opinion in J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), which made it clear that the circuit court’s subject matter jurisdiction over all civil and criminal cases, granted to it by Article V, section 14 of the Missouri Constitution, cannot be restricted by statutes that would bar litigants from relief. McCracken, 298 S.W3d at 476-77. Applying J.C.W.’s subject matter jurisdiction analysis, the Supreme Court held in McCracken that because the tort case was a civil case, the circuit court had subject matter jurisdiction, and that the issue should be raised as an affirmative defense to the circuit court’s authority to proceed in resolving the claim. Id. at 476-77. Regarding the procedural effect that the exclusive workers’ compensation remedy provided by statute had on the case, the court explained that

the issue ... is not a question that affects the circuit court’s subject matter jurisdiction to decide his claim. Rather, a claim that the court has before it an exception to the normal rule that tort cases are determined by the circuit court is a matter of affirmative defense that must be pleaded and proved as provided in Rules 55.08 and 55.27.

Id. at 479.

Consistent with McCracken, the present wrongful death/negligence claim is a civil case and Respondent has subject matter jurisdiction. We, therefore, improvidently granted a writ of prohibition preventing Respondent from taking further action in this case. The Preliminary Order in Prohibition is quashed.

SCOTT, C.J., and LYNCH, P.J., concur.

      . All rule references are to Missouri Court Rules (2002), and all references to statutes are to RSMo Cum.Supp.2005, unless otherwise specified.


author: DON E. BURRELL, Judge.

text:
    STATE of Missouri, PlaintiffRespondent, v. Dewey O. HOPPER, Jr., Defendant-Appellant.
    No. SD 29638.
    Missouri Court of Appeals, Southern District, Division One.
    Feb. 19, 2010.
    Rehearing Denied March 12, 2010.

      Margaret M. Johnston, Columbia, MO, for Appellant.
    Chris Koster, Attorney General, and Terrence M. Messonnier, Jefferson City, MO, for Respondent.
   DON E. BURRELL, Judge.

Dewey “Buddy” Hopper (“Defendant”) was convicted, following a jury trial, of forcibly raping J.T. (“Victim”). He was thereafter sentenced as a persistent offender to serve thirty years in the Missouri Department of Corrections. Defendant asserts two points on appeal: 1) that the trial court abused its discretion in not allowing him to present an alibi defense; and 2) that the trial court abused its discretion in not allowing Defendant to present evidence of a subsequent false allegation of sexual assault Victim had made against another individual. Finding merit in Defendant’s first point, we reverse his conviction and remand the matter for a new trial.

Facts and Procedural Background

Viewed in the light most favorable to the jury’s verdict, State v. Cox, 248 S.W.3d 720, 721 (Mo.App. S.D.2008), the evidence was as follows. Victim has Williams’ Syndrome, a physical and mental developmental disability that makes her loving, gentle, trusting, sweet, and very caring, as well as fragile, rather weak, and small in stature. During the timeframe of the alleged offense, Defendant was “dating” Victim’s older sister, and Defendant, Victim, Victim’s mother, and Victim’s older sister were all living together in the same house.

On July 5, 2004, Victim’s grandfather became ill, and Victim’s mother and older sister took him to the hospital. Defendant and Victim stayed home. Victim decided to go swimming and went to her room to put on her bathing suit. Defendant then came into Victim’s room and told her to take off her clothes. Victim said, “I was scared at first, but he forced me after-wards.” She first told Defendant no, but he then yelled at her and she complied because she was scared.

After Victim took her swimming suit off, Defendant pulled down his pants and underwear and told Victim to put his penis in her mouth. After first telling him no, she complied. Victim also testified that Defendant had a tattoo on the upper side of his penis that read, “One hundred percent beef.” Defendant then got on top of Victim and “stuck his penis inside [her] as hard as he could” after putting lotion on it. Victim testified that it hurt and she “asked him to stop and he wouldn’t.”

While he was raping Victim, Defendant told Victim that if she told anybody he would kill her. Defendant also told Victim that he had previously raped a thirteen-year-old girl. After the incident was over, Victim stated that she “put on [her] bathing suit and went outside, went to the garden and picked tomatoes and lettuce, cucumbers and corn.” Victim also went swimming. Defendant was with Victim while she picked the vegetables and while she was swimming.

Victim testified that “this” had later happened “a couple of more times” with Defendant on occasions when he did not voice any threats, but she “went along” out of fear that he would kill her if she did not. Because Victim was afraid for her life, she did not tell anyone about what Defendant had done until March of 2005.

In March of 2005, Victim was eating dinner with her mother, her sister, and her sister’s new husband. They were all teasing each other and Victim’s sister said, “[Victim], you’ve put on weight. Are you having sex? Are you messing around with somebody?” In response, Victim said, “I’m sorry, Sis, you’re going to be mad at me, but it was [Defendant].” Victim then told them that Defendant had made her get on the bed and have sex with him while everyone else was at the hospital with Victim’s grandfather.

Officer Jack Powell (“Officer Powell”) was the City Marshal in March of 2005. Officer Powell received a telephone call from Victim’s mother on March 9, 2005. During that call, Victim’s mother claimed that her daughter had been raped. Officer Powell met Victim at the emergency room and took statements from Victim, Victim’s sister, and Victim’s mother.

The next day, Officer Powell interviewed Defendant. During that interview, Defendant told Officer Powell that he “wasn’t there during that day[,] period[.]” Defendant told Officer Powell that he had been at his father’s house in Cardwell, Missouri on the day in question. Officer Powell testified that he was unable to confirm Defendant’s alibi claim because he was “unable to get anything from any of these folks [Defendant] was supposed to have been with.” Officer Powell tried, without success, to get messages to Defendant’s family by contacting Cardwell law enforcement officers and asking them to attempt to locate the family members in question and relay a message that they should call Officer Powell.

On June 28, 2006, the State filed an information charging Defendant with forcible rape and a request that Defendant disclose “any notice of any intent to possibly rely on alibi[.]” The Office of the Public Defender was appointed to represent Defendant, and Christopher Wynes, an attorney with the Public Defender’s Caruthersville office, was Defendant’s first attorney in the case. Over the course of Defendant’s case, he was represented by at least four different assistant public defenders, the final one being Brandon Sanchez (“trial counsel”).

One of Defendant’s prior attorneys, Lesley Lynn (“Ms. Lynn”), was allowed to withdraw as Defendant’s attorney after she informed the court that Defendant had (in the presence of a corrections officer) threatened to physically harm her. Two days after Ms. Lynn was allowed to withdraw, the original trial judge recused himself from the case when the prosecutor filed new criminal charges against Defendant based on an allegation that Defendant had threatened to harm the judge with an assault rifle. Trial counsel filed his entry of appearance less than six months before Defendant’s case was tried.

About two weeks before trial was to begin, trial counsel went through his case file and discovered notes made by an investigator some three years earlier. These notes were from interviews of potential witnesses who indicated they would be able to provide Defendant with an alibi. Ten days before trial, trial counsel filed a written notice of intent to rely on the defense of alibi. That written notice stated that on the entire day of the charged offense, Defendant was in Bragg City with his former girlfriend, Denise Thompson (formerly Taylor). According to trial counsel, the previous attorney assigned to Defendant’s case (Ms. Lynn) had apparently decided not to call these witnesses because their testimony differed from what Defendant had told the police — that he had been with his father in Cardwell on the day in question. In arguing to the court that Defendant should be allowed to present alibi evidence despite the late notice, trial counsel stated he had originally intended to proceed based on the theory of defense worked out by Ms. Lynn. Then, in going back over the file, he discovered the alibi testimony at issue and decided it would be best to proceed with a defense based upon that testimony.

The State responded that the witnesses should not be allowed to testify because: 1) the information about what these witnesses would say had been in the possession of the Public Defender for several years and had never been disclosed to the State; 2) Defendant had not responded to the State’s June 28, 2006, request that he disclose any intent to rely on an alibi defense; and 3) Defendant’s November 21st disclosure of an intent to rely on alibi came after trial counsel knew that the prosecutor trying the case would be out of the country the following week and would therefore not have the ability to investigate or depose the witnesses prior to trial.

The State stipulated that Defendant could use the investigator’s notes as a sufficient offer of proof as to what the testimony of the witnesses would be. Those notes were marked and preserved for the record as Exhibit A. An examination of Exhibit A reveals the following:

Amanda Mahan would have testified that she was staying with her parents in Bragg City, Missouri during the time of July 4th and 5th, 2004. She remembers that Defendant came to stay at her parents’ house during that holiday and was there all week, staying the nights there. He was there on July 5, 2004.

Denise Taylor stated that Defendant arrived at their house in Bragg City on July 3rd, 2004, and remained there until July 7, 2004. Defendant was with her on July 5, 2004, when they went swimming at the Ben Cash area and after swimming they returned to Bragg City. Defendant did not have a car, so the Taylors drove him around.

Glenda Taylor stated that Defendant was at her house on July 5, 2004, and that Defendant, Timmy Taylor, and Wesley Taylor went somewhere in Tennessee to swim, and came back later to her house and stayed there all week. Defendant did go to Caruthersville, Missouri to see someone named “Stacy Boniford.”

Timmy Taylor would have testified that Defendant came to his house in Bragg City on July 3, 2004, and stayed there the whole week. On July 5, 2004, they all went swimming at the Ben Cash area, got home around 6:00 p.m., and Defendant stayed the night that night and also stayed with them for several more days.

Wesley Taylor stated that Defendant came to his house in Bragg City on July 3rd, 2004, and stayed there for about a week. He would have testified that on July 4, 2004, he, Timmy, Denise, and Defendant went swimming at the Ben Cash conservation Area, came back to the house in the afternoon, and that Defendant helped him with yard work on July 5, 2004, and stayed for several more days.

Dewey Hopper, Sr., Defendant’s father, would have testified that July 4 is his birthday, and that Defendant came to his house with his girlfriend, Denise, on July 4, 2004. The two stayed to visit for awhile, then left to go to a fireworks show in Caruthersville. Hopper, Sr. also stated that he believed [Defendant] went to Ben Cash Lake the next day.

Consistent with the position it had previously expressed during the parties’ conference call, the trial court denied “[Defendant’s] request to present evidence from these various witnesses with regard to alibi.”

Standard of Review

In general, the decision to exclude evidence as a sanction for the violation of discovery rules is left to the discretion of the trial court. State v. Walkup, 220 S.W.3d 748, 757 (Mo. banc 2007). However,

[t]he sanction is used sparingly against a defendant in a criminal case because of the trial court’s duty to ensure a fair trial by allowing the defendant to put on a defense. A defendant in a criminal case has a constitutional right to present a complete defense. California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984).
When it comes to applying evidentiary principles or rules, the erroneous exclusion of evidence in a criminal case creates a rebuttable presumption of prejudice. Burton v. State, 641 S.W.2d 95, 99 (Mo. banc 1982); State v. Rhodes, 988 S.W.2d 521, 529 (Mo. banc 1999). The state may rebut this presumption by proving that the error was harmless beyond a reasonable doubt. State v. Sanders, 126 S.W.3d 5, 23 (Mo.App.2003).

Id. “As a matter of law, no abuse of discretion exists when the court refuses to allow the late endorsement of a defense witness whose testimony would have been cumulative, collateral, or if the late endorsement would have unfairly surprised the State.” State v. Destefano, 211 S.W.3d 173, 181 (Mo.App. S.D.2007) (quoting State v. Williams, 853 S.W.2d 371, 373-74 (Mo.App. E.D.1993)). “We will reverse where it can be shown that the trial court’s action has resulted in fundamental unfairness to the defendant.” Destefano, 211 S.W.3d at 181 (quoting State v. Miller, 935 S.W.2d 618, 623 (Mo.App. W.D.1996)).

Analysis

Point I: Exclusion of Defendant’s Alibi Defense

Defendant’s first point on appeal alleges the trial court abused its discretion in refusing to allow Defendant’s alibi evidence because it deprived him of his constitutional right to present a defense and it was fundamentally unfair to exclude it because the State had known for three-and-a-half years before trial that [Defendant] had “claimed the defense of alibi when he was first interrogated about the allegation by Officer Powell, trial counsel had entered his appearance only four months before trial and disclosed his intent to rely on the defense as soon as he reviewed the witnesses statements, and the court considered no other alternatives to excluding the witnesses’ testimony.”

Officer Powell testified at trial that he interviewed Defendant about the incident on March 9, 2005, and “[t]he only thing [Defendant] would tell me was that he wasn’t there during that day period, that he was at his father’s. And I was unable to confirm that because I was unable to get anything from any of these folks he was supposed to have been with.”

“The purpose of the criminal discovery rules, including Rule 25.05, is to eliminate surprise by ‘allowing] both sides to know the witnesses and evidence to be introduced at trial.’ ” Walkup, 220 S.W.3d at 753 (quoting State v. Whitfield, 837 S.W.2d 503, 508 (Mo. banc 1992)) (brackets in original). Rule 25.05 states that “on written request by the [S]tate, the defendant shall disclose to counsel for the state ... [t]he names and last known addresses of persons, other than defendant, whom defendant intends to call as witnesses at any hearing or at the trial.... ” Destefano, 211 S.W.3d at 181 (brackets as in original).

In general, “[w]hen a party fails to comply -with a discovery rule, the trial court may order disclosure of material and information, grant a continuance, exclude evidence or enter such orders it deems just given the situation.” State v. Massey, 867 S.W.2d 266, 268 (Mo.App. E.D.1993) (citing Rule 25.18). “The exclusion of the testimony of witnesses whose identity has not been properly disclosed is among the sanctions authorized by Rule 25.18.” Destefano, 211 S.W.3d at 181. “In fashioning sanctions or remedies for a discovery violation, generally the focus is the removal or amelioration of any prejudice which the State suffers due to the violation.” State v. Simonton, 49 S.W.3d 766, 781 (Mo.App. W.D.2001) (quoting Massey, 867 S.W.2d at 268).

However, “[t]he exclusion of an alibi witness as a sanction for a discovery violation is a drastic remedy.” Massey, 867 S.W.2d at 268. “The remedy of disallowing an alibi witness to the defendant is almost as drastic, if not as drastic, as declaring a mistrial.” State v. Mansfield, 637 S.W.2d 699, 703 (Mo. banc 1982). “The remedy of disallowing the relevant and material testimony of a defense witness essentially deprives the defendant of his right to call witnesses in his defense.” Id. As earlier indicated, “[t]he standard by which the exclusion of testimony for failure to comply with discovery rules must be tested is whether such action resulted in fundamental unfairness to the defendant.” Massey, 867 S.W.2d at 270. In this case, Defendant freely admits the discovery violation but challenges the severity of the sanction imposed.

In analyzing whether the trial court’s exclusion of Defendant’s witnesses was fundamentally unfair, we first consider “the harm suffered by the State if [the witnesses] had been allowed to testify ... without prior disclosure.... ” Simonton, 49 S.W.3d at 781. “This is addressed in light of the purpose of the disclosure rule which was violated.” Id. “Therefore, the review of the propriety of the trial court’s action includes consideration of whether the State was unfairly surprised by [the alibi witness’s] testimony and the harm, if any, it would have suffered by virtue of that surprise.” Id.

Although the State claims it would have been unfairly prejudiced at trial as a result of the late endorsement of the witnesses, “[t]he mere fact of late endorsement does not in itself show prejudice.” State v. Cameron, 604 S.W.2d 653, 657-659 (Mo.App. E.D.1980). “The initial consideration, whether the State would have suffered prejudice by permitting the witness to testify, is important because where the prejudice to the State is nonexistent or negligible, the imposition of the drastic sanction of witness exclusion is not necessarily appropriate.” State v. Martin, 103 S.W.3d 255, 260 (Mo.App. W.D.2003).

In Martin, an officer pursued a vehicle that was being driven in a dangerous manner, including driving at an extremely high rate of speed and passing other vehicles to evade the officer. Id. at 258-59. Instead of engaging in a high-speed pursuit, the officer followed from a distance and later located the vehicle when it had pulled to the side of the road. Id. at 259. When the officer arrived, the occupants were all standing outside the vehicle. Id. The State charged the defendant as the driver. Id. The defendant’s wife and the other female occupant were not charged with any crime. Id.

At trial, the defendant attempted to call his wife to testify that a man named “Brian,” whom they had just met in Kansas City, had actually been driving the vehicle and fled the scene before the officer arrived. Id. She did not know Brian’s last name, where he lived, or how to contact him. Id. The Western District held that the State was prejudiced by the failure to previously disclose the alibi because it denied the State the opportunity to identify, locate, and obtain a statement from the person the defendant alleged was actually driving the speeding vehicle. Id. at 261.

In the instant case, Defendant’s alibi witnesses were identified, available, and waiting to testify. At a minimum, the State could have requested a recess to allow it an opportunity to interview each of the witnesses about what their testimony would be. If the results of those interviews revealed good reasons why the State could not be prepared to address their testimony without conducting additional discovery, those reasons could then have been presented to the trial court.

The instant case is further distinguishable from Martin, in that, here, the State knew Defendant claimed he had at least one alibi witness (if not more) at the time of his arrest. In Martin, the State had no advance warning that the defendant would be claiming that someone else had been driving the vehicle. Id. at 260-61. Finally, in the instant case, Defendant gave oral notice of his intent to rely on alibi witnesses fourteen days prior to trial and formally endorsed them in writing three days later. In Martin, the defendant did not endorse his alibi witness at all and did not realize he had failed to do so until he attempted to call her to testify at trial. Id. at 259. “Additionally, the potential unfairness to the State was compounded by the fact that [the defendant’s] late endorsement of [the witness] came after the State had rested its case in chief and its witnesses had been excused.” Id. at 261. Clearly, the scenario set forth in Martin differs significantly from the case at bar.

The State argues it was prejudiced because Defendant failed to ask for a continuance when he endorsed his alibi witnesses. In State v. Skinner, 734 S.W.2d 877 (Mo.App. E.D.1987), the Eastern District upheld the trial court’s decision to allow the State to endorse witnesses both four days prior to trial and after trial had begun. Id. at 885-86. The Skinner court reasoned that the late endorsements were not fundamentally unfair because defense counsel failed to request an opportunity to interview the first witness or seek a continuance. Id. at 886. By placing the onus on the defendant to request relief, the holding in Skinner suggests that were the situation reversed, it would be up to the State to request whatever relief it thought was necessary to effectively deal with the matter instead of requiring the defendant to suggest the form of relief he thought the State might need.

Finally, the State argues it had no idea that Defendant would claim he had been with the Taylor family at the time of the alleged rape. Even if we presume this to be true, the State does admit that it “knew that [Defendant] might claim that he was with his father at the time.” If the State had followed up on Defendant’s initial alibi claim as understood by Officer Powell, it would have discovered at a minimum that Defendant’s visit with his father occurred on July 4th, that Denise Taylor was with Defendant at the time, and that Defendant was accompanied by Ms. Taylor when they left.

After considering “the harm to the State as a result of defense counsel’s discovery violation, the inquiry must now turn to the prejudice suffered by [Defendant] in excluding [the alibi witness’s] testimony.” Simonton, 49 S.W.3d at 783. Clearly, the anticipated testimony of the alibi witnesses was relevant and material to the defense. “To determine whether the exclusion of the witnesses’ testimony resulted in prejudice, the facts and circumstances of the particular case must be examined including: (1) the nature of the charge; (2) the evidence presented; and (3) the role the excluded evidence would have played in the defense’s theory.” Massey, 867 S.W.2d at 269.

Because the conduct charged by the State was alleged to have occurred on a specific date, July 5th, if the jury had been allowed to hear the excluded testimony and found it credible, Defendant could not have been convicted of the offense charged. “[A] prosecuting attorney in a criminal case acts as a quasi-judicial officer representing the people of the State; his duty is not to convict at any cost but to see that justice is done and that the accused receives a fair and impartial trial.” Id. at 270.

An instructive case is State v. Mansfield, supra. In that case, as in the instant case, the alibi claimed by the defendant did not exactly match up with the statements of his alibi witnesses, but they were similar. 687 S.W.2d at 702. Our Supreme Court found that the State was on notice that the defendant would claim to have been with an alibi witness during at least a portion of the relevant time frame, based on statements he had made to the police during their initial investigation of the crime. Id. Although the defense failed to follow the discovery rules, our high court reversed the conviction based on the trial court’s decision to exclude the alibi testimony. Id. at 703-04.

“Exclusion of a witness may be proper when no reasonable justification is given for the failure to disclose the witness.” Martin, 103 S.W.3d at 261. “If an explanation tends to show good cause for the nondisclosure, exclusion of a significant defense witness would likely be an abuse of discretion.” Id. This court has previously reversed a judgment of conviction and remanded the case when the defendant’s alibi witness was not disclosed until the morning of trial and the defense’s only “good cause” was “lack of time and manpower” in the Public Defender’s office. See State v. Gooch, 659 S.W.2d 342 (Mo.App. S.D.1983). In Gooch, also a rape case, the assistant public defender trying the case did not “personally” know that the defendant had an alibi until the day of trial. Id. at 343. He stated that “due to lack of time and manpower his office had not been able ‘to do everything’ regarding this case.” Id. This court concluded that in a rape prosecution where the defendant says he was not with the victim on the date in question, disallowing an alibi witness was too drastic a remedy. Id. at 344.

We cannot say that the “cause” asserted in this case — that trial counsel was the fourth attorney assigned to the case and had originally planned to follow a previous attorney’s strategy in the case — was not as good as that asserted in Gooch. Here, trial counsel reviewed the case file and found the alibi information approximately two weeks before trial (not the morning of) and immediately informed the State and the court.

“The ultimate question for this court to determine is whether the exclusion of [the alibi witnesses’] testimony ‘substantively altered the outcome of the case.’ ” Simonton, 49 S.W.3d at 783 (quoting State v. Hunter, 957 S.W.2d 467, 469-70 (Mo.App. W.D.1997)). The anticipated testimony of the alibi witnesses as set forth in the stipulated offer of proof would have resulted in Defendant’s acquittal if believed by the jury. As a result, the State cannot show that its exclusion was harmless beyond a reasonable doubt. See Walkup, 220 S.W.3d at 757; Simonton, 49 S.W.3d at 783.

In summary, the prejudice to Defendant was great, while the prejudice to the State was minimal and could have been relieved by less drastic means. As in Simonton, we are firmly convinced that the exclusion of Defendant’s alibi witnesses was too drastic a remedy. See Simonton, 49 S.W.3d at 785-86 (“The trial court should have fashioned some other remedy to alleviate any harm to the State, while at the same time protecting [the defendant’s] right to present such [ ] vital witnesses] to his defense.”) Point I is granted.

Point II: Exclusion of Victim’s Subsequent Allegation of Sexual Assault

In his second point, Defendant argues the trial court abused its discretion in not allowing him to present evidence he says shows Victim made a false allegation of sexual assault against another individual in January of 2006 — a year-and-a-half after the date of the criminal conduct charged to Defendant. Defendant argues that refusing to allow him to present this testimony denied “his due process rights to a fair trial and to present a defense” as it was “relevant to challenge [Victim’s] veracity.”

Because the case must be remanded for a new trial based on Defendant’s first claim of error, and we cannot predict what evidence will be presented on retrial, we need not rule on his second. “Upon retrial, should the ci'iticized evidence be offered again, the parties and the court will have the benefit of the research reflected in their briefs here.” Carder v. Eaton, 629 S.W.2d 553, 555 (Mo.App. W.D.1981).

The judgment of conviction and sentence is reversed and the matter is remanded for a new trial consistent with this opinion.

BARNEY, J., and BATES, P.J., Concur.

      . See section 566.030. Unless otherwise indicated, all statutory references are to RSMo 2000, and all rule references are to Missouri Court Rules (2009).

      . The transcript actually indicates the year as ''2004/' but this appears to either be a transcription error or a misstatement by Officer Powell.

      . All of these references by Officer Powell to "these folks” and "family members” and that "they" should get in touch with him seem to indicate that he understood at the time of his first interview of Defendant that Defendant was claiming to have been with more persons than just his father at the time of the alleged incident.

      .Although an entry in the trial court's docket sheet dated 6/28/06 indicates a “Motion for Disclosure” was filed by the State and we presume such a motion would have been made in writing as required by Rule 25.05, no such writing is included in the record on appeal. The only other reference to the State's alibi disclosure request occurs during a bench conference at trial. When the prosecutor mentioned the disclosure request, defense counsel made no attempt to dispute that such a request had, in fact, been made.

      . Defendant's compliance with the rules of the legal system he now turns to for relief has been less than stellar. After originally being released on bond, Defendant failed to appear in court as directed on several occasions and was eventually surrendered by his bonding company and held in the county jail without bond. Defendant subsequently escaped from jail and was at large for five days before he was caught in Cardwell and taken back into custody. Because the errors Defendant alleges occurred after the time of his recapture, the "escape rule” does not bar his appeal. Robinson v. State, 854 S.W.2d 393, 396 (Mo. banc 1993). "Once a defendant escapes and has been returned to custody, he is entitled to appeal any errors that occurred post-capture.” Fogle v. State, 99 S.W.3d 63, 65 (Mo.App. E.D.2003).

      . The Thanksgiving holiday occurred within this ten day period.

      . Trial counsel must have immediately informed the prosecutor about his discovery of the potential alibi testimony because the attorneys apparently had a telephone conference with the trial court about the issue on or about the date the notes were discovered. The court apparently indicated at that time that it would not be allowing Defendant's alibi witnesses to testify at trial. No record of this telephone conference was made and no indication of its having occurred appears in the court's docket entries, but the parties made reference to it when they made a record on various pre-trial motions on the first morning of trial.

      . The notice went on to state that, "[Defendant] may have traveled at different times through out [sic] the day but was never out of the company of Denise Thompson.”

      . Trial counsel informed the court that he also intended to call Defendant's father as a witness, who trial counsel believed would testify that Defendant was at his home briefly on July 4th and was accompanied by Denise Taylor. Trial counsel indicated that all of his alibi witnesses were present and available to testify.

      . In regard only to Denise Taylor, Exhibit A actually lists these dates as May 3rd to 7th, and July 5th. As the information she provided is otherwise consistent with the July dates given by the other witnesses, this reference to May appears to be a scrivener's error.

      . Overruled on other grounds by State v. Clark, 652 S.W.2d 123 (Mo. banc 1983).

      . In Simonton, the reviewing court noted that, "If the State needed additional time to prepare, it could have requested a continuance." Id. at 782-83.

      . Defense counsel had asked for and received an opportunity to interview the witness the State had endorsed during trial; he did not request a continuance. As a result, the defendant could not complain on appeal about having received the relief his counsel had requested.