author: CYNTHIA L. MARTIN, Judge.

text:
    STATE ex rel. KIRKSVILLE MISSOURI HOSPITAL COMPANY LLC d/b/a Northeast Regional Medical Center, Relator, v. Honorable Ralph H. JAYNES, Visiting Judge, Circuit Court of Boone County, MO, Respondent.
    No. WD 72684.
    Missouri Court of Appeals, Western District.
    Nov. 9, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2010.
    Application for Transfer Denied Jan. 25, 2011.

      Philip R. Dupont and Albert S. Laferte, Kansas City, MO, for relator.
    Leland F. Dempsey and Ashley L. Baird, Kansas City, MO, for respondent.
    Before Writ Division: JAMES E. WELSH, Presiding Judge, MARK D. PFEIFFER, Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

This is an original proceeding in prohibition. Relator Kirksville, Missouri, Hospital Company, LLC, d/b/a Northeast Regional Medical Center (“NERMC”) seeks to prohibit the respondent, the Honorable Ralph H. Jaynes, visiting judge in the Circuit Court of Boone County, Missouri, from allowing plaintiffs, Francis and Janie Watson (“Watsons”) to discover documents relating to the credentialing of Dr. John Bailey (“Dr. Bailey”) in an underlying medical malpractice and negligent credentialing action. Forty pages of documents were ordered produced, following in camera review. NERMC claims all of these documents are protected from discovery by section 537.035.4, the peer review statute.

Our preliminary writ of prohibition is dissolved.

Factual Background

Dr. Bailey submitted an application for surgical privileges in back surgery to NERMC in mid-1997. Temporary privileges were afforded Dr. Bailey. At or near the same time, a question arose about whether Dr. Bailey had successfully completed training with the Columbia Spine Fellowship. NERMC’s Director of Surgery expressed a concern that Dr. Bailey had been granted temporary privileges before this issue had been resolved. He proposed submitting Dr. Bailey’s first twenty-five spinal instrumentation cases to an independent, fellowship trained, spine surgeon for review.

NERMC’s Executive Committee approved this recommendation and retained Dr. John Flood, an independent spine surgeon practicing in Michigan, for this purpose. Dr. Flood reviewed twenty cases involving spine surgeries performed by Dr. Bailey. Dr. Flood prepared a written report, which he submitted to NERMC. NERMC contends the report was sought as a part of considering whether to afford Dr. Bailey permanent privileges.

The Watsons filed a lawsuit against Dr. Bailey and NERMC in 2004 claiming Dr. Bailey negligently treated and performed surgery on Mr. Watson. The Watsons further claim that NERMC was negligent in granting Dr. Bailey staff privileges to perform spine surgeries. The Watsons learned of Dr. Flood’s report and took Dr. Flood’s deposition on April 29, 2008. Numerous objections were asserted by NERMC in reliance on the peer review privilege described in section 537.035. The Watsons filed a motion for enforcement of discovery relating to the objections, which was thereafter granted in part and denied in part. Dr. Flood’s second deposition was conducted on September 18, 2009, with a Special Discovery Master, John Hutcherson, in attendance.

Before Dr. Flood’s second deposition, the Watsons filed a motion for enforcement of discovery or in the alternative, an in-camera review, relating to specific documents alleged to involve Dr. Flood’s report and identified on a privilege log prepared by NERMC. Specifically, the Watsons sought production of documents bearing Bates Numbers NERMC/PR 000001 through 0000066 which the Wat-sons alleged involved Dr. Flood’s recommendations to NERMC concerning Dr. Bailey’s credentialing and his knowledge and ability to perform complicated spine surgery.

The motion to enforce discovery was considered by the Special Discovery Master. The Special Discovery Master entered a report on January 15, 2010. The report indicated that the documents Bates Numbered NERMC/PR 000001 through 000007, 0000016 through 0000019, and 0000057 had already been produced by agreement. The report indicated that the Special Discovery Master had reviewed the remaining documents in camera. The Special Discovery Master granted the motion to enforce discovery for the documents Bates Numbered 000008 through 000015, 000020 through 000043, and 000058 through 000065. The Special Discovery Master advised that the documents ordered produced should be redacted to remove any patient identifying information protected by HIPPA.

The Special Discovery Master specifically found that the documents ordered produced were not protected as peer review pursuant to section 587.035.4, although the report did not provide an explanation for this conclusion.

At our request, the forty pages of documents ordered produced, and thus at issue in this proceeding, were delivered by NERMC for our in camera review on October 12, 2010. The contested documents fall into three categories: (1) Dr. Flood’s report generated following review of several of Dr. Bailey’s patient files; (2) Dr. Bailey’s response to Dr. Flood’s report; and (3) minutes from Executive Committee Peer Review meetings discussing Dr. Flood’s report.

Analysis

Section 537.035.4 provides:

Except as otherwise provided in this section, the interviews, memoranda, proceedings, findings, deliberations, reports, and minutes of peer review committees, or the existence of the same, concerning the health care provided any patient are privileged and shall not be subject to discovery, subpoena, or other means of legal compulsion for their release to any person or entity or be admissible into evidence in any judicial or administrative action for failure to provide appropriate care. Except as otherwise provided in this section, no person who was in attendance at any peer review committee proceeding shall be permitted or required to disclose any information acquired in connection with or in the course of such proceeding, or to disclose any opinion, recommendation, or evaluation of the committee or board, or any member thereof; provided, however, that information otherwise discoverable or admissible from original sources is not to be construed as immune from discovery or use in any proceeding merely because it was presented during proceedings before a peer review committee nor is a member, employee, or agent or such committee, or other person appearing before it, to be prevented from testifying as to matters within his personal knowledge and in accordance "with the other provisions of this section, but such witness cannot be questioned about testimony or other proceedings before any health care review committee or board or about opinions formed as a result of such committee healings. The disclosure of any interview, memoranda, proceedings, findings, deliberations, reports, or minutes to any person or entity, including but not limited to governmental agencies, professional accrediting agencies, or other health care providers, whether proper or improper, shall not waive or have any effect upon its confidentiality, nondiscoverability, or nonadmissibility.

(Emphasis added.) NERMC argues that the documents ordered produced involve a credentials committee’s investigations, minutes, reports, and deliberations about Dr. Bailey’s prior surgeries and thus “concern the health care provided to any patient.” NERMC also argues that redacting patient information does not protect or preserve the peer review process. Finally, NERMC argues that Dr. Flood is not an “original source” as that phrase, is used in section 537.035.4.

The Respondent argues that not all functions of credentials committees are exempt from discovery and that they are not seeking discovery concerning the health care provided to Dr. Bailey’s patients but, rather, discovery concerning Dr. Bailey’s abilities as a spine surgeon. Respondents argue that the findings and recommendations given by a person who is hired to guide a hospital in making a credentialing decision is not protected by section 537.035.4 as that person is an “original source.”

Section 537.035.4 describes two categories of privileged information. In the first sentence, section 537.035.4 states that “[ejxcept as otherwise provided in this section,” certain specified documents “of peer review committees ” are protected from discovery, but only if the documents concern “the health care provided any patient.” In the second sentence, section 537.035.4 states that “[ejxcept as otherwise provided in this section, no person who was in attendance at any peer review committee proceeding ” is permitted to disclose information acquired from the proceeding.

The second sentence of section 537.035.4 ends with a semicolon and is followed by a lengthy passage commencing with the words “provided, however.” This lengthy passage appears intended to describe the “exceptions” referred to by the phrase “except as otherwise provided in this section” prefacing the first and second sentences of section 537.035.4. The “exceptions” then described are: (a) that information otherwise discoverable or admissible from original sources will not be immune from discovery merely because it was presented during proceedings before a peer review committee; and (b) that a member, employee, or agent of a peer review committee, or any person appearing before such a committee, cannot be prevented from testifying about matters within their personal knowledge, though they cannot testify about the proceedings of a committee, including about any testimony they may have provided to a committee.

Given this construction, we need not address the application of the “exceptions” described in section 537.035.4 unless we first determine that the contested documents are preliminarily protected from production by either the first or second sentence of section 537.035.4.

Dr. Flood’s Report

We are first compelled to address a fundamental question relating to the availability of prohibition with respect to certain portions of Dr. Flood’s report. Our courts have “a strong reluctance to review interlocutory allegations of nonju-risdictional trial court error in prohibition actions.” State ex rel. Faith Hosp. v. Enright, 706 S.W.2d 852, 855 (Mo. banc 1986) (citing State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889 (Mo. banc 1983)). However, we have observed that:

[F]rom time to time in peculiarly limited situations there are instances in which absolute irreparable harm may come to a litigant if some spirit of justifiable relief is not made available to respond to a trial court’s order. In such circumstances, the extemporaneous character of prohibition may be the remedy to be applied.

State ex rel. Richardson v. Randall, 660 S.W.2d 699, 701 (Mo. banc 1983). “The basis for prohibition particularly applies where privileges are at issue.” State ex rel. Wilfong v. Schaeperkoetter, 933 S.W.2d 407, 408 (Mo. banc 1996). As noted in Faith Hospital, a violation of a privilege “cannot be adequately remedied on appeal. Once the proverbial bell has been rung, its sound can neither be recalled nor subsequently silenced.” 706 S.W.2d at 855. Thus, prohibition will not lie unless absolute irreparable harm that cannot be adequately remedied on appeal has been established. The burden is on NERMC to establish that such harm exists. State ex rel. Vanderpool Feed & Supply Co. v. Sloan, 628 S.W.2d 414, 416 (Mo.App.1982). NERMC has not met this burden with respect to several pages of Dr. Flood’s report.

Our detailed and independent review of the materials submitted by the parties in connection with this proceeding has revealed that seven pages of Dr. Flood’s report are already in the Watsons’ possession. On these seven pages, Dr. Flood details his concerns about seven of the twenty Dr. Bailey patient charts he reviewed. During oral argument, counsel for NERMC conceded that these seven pages of Dr. Flood’s report are in the Watsons’ possession. Consistent with this fact, these seven pages were not the subject of the Watsons’ motion to enforce discovery. The Watsons’ motion to enforce discovery states:

According to Plaintiffs discovery, the review of Dr. Flood only contains seven separate pages listed by case number, with a detailed typewritten critique of each of these spinal cases. Interestingly, Dr. Flood’s review does not contain a cover sheet or cover letter to a staff member of NERMC with his recommendation concerning the granting of privileges to Dr. Bailey, and similarly his review also does not contain a signature page from John Flood, D.O.

It is apparent, therefore, that with respect to Dr. Flood’s report, the Watsons’ motion to enforce was only seeking production of those portions of Dr. Flood’s report, if any, that they did not already have in their possession.

NERMC’s petition for writ of prohibition and its brief in this original proceeding in prohibition assert that Dr. Flood’s report is privileged under section 537.035.4 and that prohibition is necessary to prevent NERMC from the irreparable harm of its disclosure. NERMC failed to advise this court, however, that seven pages of Dr. Flood’s report are already in the Wat-sons’ possession. NERMC also failed to advise this court that of the forty pages of documents at issue in this proceeding, twenty eight of those pages are four sets of copies of the seven pages of Dr. Flood’s report already in the Watsons’ possession. (Bates Numbers 000008 through 000014; 000020 through 000026; 000028 through 000034; 000058 through 000064). Had we not sought review of the contested documents in camera, that fact would not have been known to us.

A permanent writ of prohibition to prevent production of documents the Wat-sons already have will not spare NERMC from absolute irreparable harm. Assuming, arguendo, that the seven pages of Dr. Flood’s report in the Watsons’ possession are privileged peer review under section 537.035.4, the “harm” of their production has already occurred. The proverbial bell has already been rung. Faith Hosp., 706 5.W.2d at 855. NERMC is not entitled to a permanent writ of prohibition to protect itself from an alleged harm that has already occurred.

Our preliminary writ of prohibition is dissolved as to the documents ordered produced and bearing Bates Numbers 000008 through 000014; 000020 through 000026; 000028 through 000034; and 000058 through 000064.

The documents we have reviewed in camera do contain a final page to Dr. Flood’s report. It appears in the documents twice at Bates Numbers 000015 and 000027. This page is not already in the Watsons’ possession. Thus, we must address whether Dr. Flood’s report is privileged by virtue of either the first or second sentence of section 537.035.4.

(i) Is Dr. Flood’s report a “peer review committee report” concerning the health care provided any patient

NERMC contends that its Executive Committee was operating as a credentials committee. A credentials committee is a “peer review committee” as that term is defined in section 537.035.1(2). Faith Hosp., 706 S.W.2d at 855. In Faith Hospital, plaintiffs sought production of “peer review committee reports relating to the performance of one of the defendant physicians ... with respect to other patients from 1980 until the date of the complained of surgery.” Id. The Supreme Court held that this request fell “squarely within the exemption from discovery created by the General Assembly in section 537.035.4.” Id. However, the Supreme Court was careful to observe:

[N]ot all functions of credentials committees are exempt from discovery under section 537.035.4. By its own terms, the exemption provided by this section is limited to those findings and deliberations “concerning the health care provided any patient.” Id. Credentials committee findings and deliberations are not exempt from discovery, therefore, unless they specifically concern the health care provided a patient.

Id. (emphasis added). The Court made its writ of prohibition absolute “insofar as it relates to the proceedings, findings, deliberations, reports and minutes of peer review committees, including credentials committees, concerning the health care provided any patient.” Id. at 856 (emphasis added).

NERMC argues that Faith Hospital is factually indistinguishable from this case. We disagree. Faith Hospital held that production “of peer review committee reports ” addressing performance of a physician with respect to other patients could not be compelled. 706 S.W.2d at 856. Dr. Flood is not a member of NERMC’s Executive Committee. We must determine, therefore, whether Dr. Flood’s report is a “peer review committee” report within the intended scope of the first sentence of section 537.035.4 merely because it was commissioned and reviewed by NERMC’s Executive Committee. Faith Hospital did not address this question.

We do not believe Dr. Flood’s report is “a peer review committee report” as that phrase was intended by the legislature in section 537.035.4. “When construing a statute, courts must ‘ascertain the intent of the legislature from the language used and give effect to that intent, if possible, and to consider the words used in their plain and ordinary meaning.’ ” State ex rel. Tennill v. Roper, 965 S.W.2d 945, 948 (Mo.App. W.D.1998) (quoting Butler v. Mitchellr-Hugehack, Inc., 895 S.W.2d 15, 19 (Mo. banc 1995)). The first sentence of section 537.035.4 protects “interviews, memoranda, proceedings, findings, deliberations, reports, [or] minutes of peer review committees." Dr. Flood’s report does not fall into the plain and ordinary meaning of any of these categories. Instead, Dr. Flood’s report reflects the knowledge and/or opinions held by an outside source.

We faced a similar situation in Tennill, 965 S.W.2d at 948. There, we concluded that a private outside company hired to conduct peer reviews of a hospital’s physicians is not a “peer review committee” as defined by the legislature in sections 537.035.1(2) and 537.035.2. Id. Similarly, Dr. Flood is a private, outside physician hired to review Dr. Bailey’s files. If Dr. Flood’s activities are insufficient to permit him to be characterized as a “peer review committee” under section 537.035, it follows that Dr. Flood’s report cannot be characterized as a “peer review committee” report.

NERMC disagrees and argues that since Dr. Flood’s report was requested by NERMC and was reviewed by the Executive Committee for its consideration as a part of the credentialing decision involving Dr. Bailey, the report must be viewed as a peer review committee report. NERMC would thus have us rewrite the first sentence of section 537.035.4 to include within the specific delineation of privileged peer review committee documents any information, data, reports, or records commissioned or reviewed by a peer review committee. We are not empowered to rewrite the statute in this fashion. Jepson v. Stubbs, 555 S.W.2d 307, 313 (Mo.1977). “If the legislature had intended that all information provided to the committee be privileged, it would have expressly so said. It did not.” Trinity Med. Ctr., Inc. v. Holum, 544 N.W.2d 148, 157 (N.D.1996).

A similar argument was advanced in Hill v. Sandhu, 129 F.R.D. 548 (D.Kan. 1990). The Kansas peer review statute is similar to Missouri’s with respect to the language affording privilege to certain documents of a peer review committee. In Hill, the court held:

Kan.Stat.Ann. section 65-4915(4)(b) clearly states that “the reports, statements, memorandums, proceedings, findings, and other records of peer review committees or officers shall be privileged.... ” The language does not include reports reviewed by the committee....
The court’s interpretation of the peer review statute is in line with the public policy of Kansas. By enacting Kan.Stat. Ann. section 65-4915, the Kansas Legislature intended to increase the level of health cai'e in the state by protecting the deliberations of peer review committees. The statute says nothing about eliminating the torts of medical malpractice or the negligent awarding of staff privileges. It likewise says nothing about protecting evidence and information about such causes of action unless that information is reñective of the deliberations of the peer review committee. Had it intended to do otherwise, the legislature could have used language plainly providing for that result.

Id. at 550-51 (emphasis added). We are persuaded by this analysis, particularly as it is in line with Faith Hospital, where our Supreme Court similarly construed the scope of the first sentence of section 537.035.4 to be limited to “credentials committee findings and deliberations.” 706 S.W.2d at 855. We thus conclude that a report prepared by a third person is not a peer review committee report under section 537.035.4 merely because the report was commissioned by and subsequently reviewed by the peer review committee. Because we conclude that Dr. Flood’s report is not a peer review committee report, we need not address whether Dr. Flood’s report concerns the health care provided any patient.

Further, notwithstanding NERMC’s contention in this proceeding that Dr. Flood’s report was sought as a part of its consideration whether to afford Dr. Bailey permanent privileges, the record suggests otherwise. In the letter prepared by Dr. Glenn Browning, NERMC’s Director of Surgery, wherein the recommendation to seek outside review of Dr. Bailey’s first spine instrumentation surgeries originated, Dr. Browning states:

I realize that this would be an extensive process but it seems one fair way of getting some type of documentation in case there were to be any lawsuits brought against Dr. Bailey. It would certainly show that the hospital has been diligent in trying to protect the rights of the patients as well as the rights of Dr. Bailey.

NERMC followed Dr. Browning’s suggestion. The original purpose for the outside review of Dr. Bailey’s cases was not, therefore, to credential Dr. Bailey but to solve a problem. That problem, as expressed in Dr. Browning’s letter, was that privileges had already been extended to Dr. Bailey notwithstanding evidence that he had failed to successfully complete a fellowship program in spine surgery. According to Dr. Browning’s letter, NERMC apparently envisioned the ability to use the outside report to defend itself in later lawsuits. NERMC cannot now shield Dr. Flood’s report from discovery by claiming, after seeing the report, that the report was requested in connection with a credentials decision.

(ii) Is Dr. Flood a person who was in attendance at a peer review committee proceeding

The second sentence of section 537.035.4 prohibits a person who was in attendance at a peer review committee proceeding from disclosing information acquired as a result. Dr. Flood did not attend a meeting of the NERMC Executive Committee. His report, therefore, is not immune from discovery pursuant to the second sentence of section 537.035.4, as it is not information acquired by Dr. Flood in connection with or in the course of his attendance at a peer review committee proceeding.

NERMC has not met its burden to establish that Dr. Flood’s report is immune from discovery pursuant to either the first or second sentence of section 537.035.4. We need not, therefore, address the “exceptions” to the privilege afforded by the first and second sentences of section 537.035.4. Our preliminary writ of prohibition is dissolved as to the documents Bates Stamped 000015 and 000027.

Dr. Bailey’s Response to Dr. Flood’s Report

The second category of documents within those ordered produced is Dr. Bailey’s response to Dr. Flood’s report. This document bears Bates Numbers 000035 through 000042. We have reviewed this document in camera.

We learned during oral argument that, as was the case with seven pages from Dr. Flood’s report, Dr. Bailey’s letter is already in the Watsons’ possession, albeit in a redacted format. We do not know from our record the portions of the letter which are redacted. Though prohibition will not lie to protect a document from production that has already been produced, we must nonetheless determine whether Dr. Bailey’s letter is privileged, in general, because it appears unknown portions of the letter have not been produced.

(i) Is Dr. Bailey’s letter a peer review committee report concerning the health care provided any patient

Dr. Bailey’s letter is not “a peer review committee report.” As was the case with Dr. Flood’s report, though Dr. Bailey’s letter was commissioned and reviewed by NERMC’s Executive Committee, it was not prepared by the Executive Committee. We need not address, therefore, whether Dr. Bailey’s letter “specifically concern[s] the health care provided a patient.” Faith Hosp., 706 S.W.2d at 855.

(ii) Is Dr. Bailey a person who was in attendance at a peer review committee proceeding

Dr. Bailey did not attend a NERMC Executive Committee meeting. His letter, therefore, is not immune from discovery pursuant to the second sentence of section 537.035.4, as it is not information acquired by Dr. Bailey in connection with or in the course of his attendance at a peer review committee proceeding.

NERMC has not met its burden to establish that Dr. Bailey’s letter is privileged pursuant to either the first or second sentence of section 537.035.4. Our preliminary writ of prohibition is dissolved as to the documents Bates Stamped 000035 through 000042.

Minutes from Executive Committee Peer Review Meetings

(i) Are the minutes peer review committee documents concerning the health care provided any patient

The third category of documents ordered produced are minutes from Executive Committee Peer Review meetings. These document bear Bates Numbers 000043 and 000065. Minutes of an Executive Committee acting as a credentials committee are clearly “a peer review committee” document as defined by the legislature in the first sentence of section 537.035.4. However, our inquiry does not end here. We must examine the nature of the minutes, as “[credentials committee findings and deliberations are not exempt from discovery ... unless they specifically concern the health care provided a patient.” Faith Hosp., 706 S.W.2d at 855 (emphasis added).

NERMC argues that the minutes concern the health care provided a patient. Based on our in camera review of the minutes, we do not agree. The minutes Bates Numbered 000043 acknowledge receipt of Dr. Flood’s report, express reactions to the report without reference to any particular patient, and address the best means of responding to the report. The minutes do not specifically discuss the health care provided any patient. The minutes Bates Numbered 000065 similarly discuss follow up means of evaluating Dr. Bailey’s performance in response to Dr. Flood’s letter but do not specifically discuss the health care provided any patient.

Our preliminary writ of prohibition is dissolved as to the documents Bates Numbered 000043 through 000065, though production of these documents will remain subject to the redacting instructions included within the Special Discovery Master’s January 15, 2010 report.

We do observe that NERMC’s privilege log asserts the additional privilege of “attorney/client privilege” with respect to these two documents. However, that privilege was not asserted by NERMC as the basis for its request for writ of prohibition, and NERMC has made no attempt in this proceeding to protect its Executive Committee minutes from production based on the attorney/client privilege. Whether the minutes should be protected from discovery on the basis of the attorney/client privilege is beyond the scope of these proceedings.

As a final observation, we note that none of the documents at issue in this proceeding include patient identifying information, which would require redaction before the documents are produced. Though the Special Discovery Master’s report ordered that patient identifying information be redacted, we conclude this was an instruction included in the report out of an abundance of caution. We need not, therefore, address NERMC’s contention that redaction of patient identifying information from documents otherwise protected from discovery under section 537.035.4 is not an appropriate mechanism for protecting or preserving the peer review process.

Conclusion

Our preliminary writ in prohibition is dissolved.

All concur.

      . All statutory references are to RSMo 2000, as supplemented, except as otherwise noted.

      . The record does not indicate how the Wat-sons learned about Dr. Flood's review of Dr. Bailey's cases.

      . We draw these descriptions, loosely, from NERMC’s privilege log relating to the forty pages of contested documents.

      . Though NERMC uses the word "investigations,” that word does not appear in section 537.035.4 as a part of the legislature’s delineation of peer review committee documents protected from discovery.

      . The legislature's omission of the qualifying language relating to whether such information concerns the health care provided any patient is noted, but the significance of the omission is not addressed in this opinion.

      . We are cognizant that our in camera review of the contested documents afforded us this insight but do not believe our disclosure of the nature of twenty eight pages of those documents is inappropriate, under the circumstances.

      . We are not inappropriately revealing information based on an in camera review by this disclosure, as Dr. Flood testified in his deposition that there would have been a final page to his report beyond the seven pages marked as exhibits.

      . NERMC asserted during oral argument that it is entitled to “shield” itself from lawsuits asserting a claim of negligent credenlialing with a favorable outside report addressing a physician's qualifications, while still protecting the report from discovery, if it is unfavorable, under section 537.035.4, relying on Le Blanc v. Research Belton Hospital, 278 S.W.3d 201 (Mo.App. W.D.2008). We do not agree. LeBlanc concluded that section 537.035.3, which immunizes specified individuals from liability in connection with their participation in, or reliance upon, peer review committee proceedings, did not prevent recognition of the cause of action of negligent credenlialing in Missouri. Id. at 206-07. Though the court observed that section 537.035.3 provides qualified immunity for individuals "if their negligence in granting staff privileges derives from their good faith reliance on a peer review committee’s recommendation,” id. at 206, the court in no way discussed the discoverability of reports prepared by outside sources pursuant to section 537.035.4.

      . As a result, we need not discuss the application of the second sentence of section 537.035.4 to the contested minutes.

      . The redacting instructions involve removing discussions about other doctors or topics completely unrelated to this case.


source: Caselaw Access Project

author: SHERRI B. SULLIVAN, J.

license: Public Domain

text:
    STATE of Missouri, Plaintiff/Appellant, v. Dustin FERNOW, Defendant/Respondent.
    No. ED 94384.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Nov. 9, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 21, 2010.

      Patrick L. King, Farmington, MO, for Plaintiff/Appellant.
    Ellen H. Flottman, Columbia, MO, for Defendant/Respondent.
   SHERRI B. SULLIVAN, J.

Introduction

The State of Missouri (the State) appeals from the trial court’s judgment granting Dustin S. Fernow’s (Respondent) Motion to Dismiss For Failure to Charge an Offense, thereby dismissing the Information charging Respondent with the Class D felony of escape from custody in violation of Section 575.200. We affirm.

Factual and Procedural Background

On June 4, 2007, Respondent pled guilty to second-degree burglary and was placed on probation. On February 4, 2008, Respondent admitted to violating the terms of his probation, which was thereafter revoked. The trial court sentenced Respondent to seven years in the Department of Corrections, but suspended the execution of that sentence, and again released Respondent on probation.

On April 6, 2009, the trial court called Respondent’s case for revocation of his probation again. Respondent failed to appear. The trial court issued a capias warrant for Respondent’s arrest. Later that same day Respondent appeared at court and was taken into custody by Deputy Sheriff Jana Gillam (Gillam). Respondent subsequently ran out of the courtroom eluding Gillam and others in pursuit and was recaptured a short time later a few blocks away from the courthouse. Respondent was charged by information with escape from custody.

Respondent filed a motion to dismiss that charge, alleging the escape statute did not apply to custody occasioned by a probation violation. On February 16, 2010, the trial court granted Respondent’s motion. This appeal follows.

Point Relied On

The State contends that the trial court erred in dismissing the information as insufficient because Respondent allegedly escaped while he was in custody for a “crime” for purposes of Section 575.200.

Standard of Review

The standard of review to determine whether the trial court erred in sustaining the motion to dismiss requires that the information: (1) properly advise the defendant of the nature and cause of the accusation against him; (2) consist of a plain, concise and definite written statement of the essential facts constituting the offense charged; (3) state facts which constitute the offense charged with reasonable certainty; and (4) make the averments so clear and distinct that there could be no difficulty in determining what evidence would be admissible under them.

State v. Kline, 717 S.W.2d 849, 852 (Mo.App. E.D.1986). As in Kline, this appeal relates to the second standard, and the issue is whether the information pleads a criminal offense.

Discussion

“ ‘[T]he test for the sufficiency of an indictment or information is ‘whether it contains all the essential elements of the offense as set out in the statute [creating the offense].’ ” State v. Haynes, 17 S.W.3d 617, 619 (Mo.App. W.D.2000), quoting State v. Pride, 1 S.W.3d 494, 502 (Mo.App. W.D.1999) (further citations omitted). Respondent was charged with felony escape from custody as set forth in Section 575.200. Section 575.200 provides:

1. A person commits the crime of escape from custody or attempted escape from custody if, while being held in custody after arrest for any crime, he escapes or attempts to escape from custody.
2. Escape or attempted escape from custody is a class A misdemeanor unless:
(1) It is effected or attempted by means of a deadly weapon or dangerous instrument or by holding any person as hostage, in which case escape or attempted escape from custody is a class A felony;
(2) The person escaping or attempting to escape is under arrest for a felony, in which case escape from custody is a class D felony.

[Emphasis added.]

The Information in the instant case reads as follows:

The Special Prosecuting Attorney of the County of Washington, State of Missouri, charges that the defendant, in violation of Section 575.200, RSMo, committed the class D felony of escape from custody, punishable upon conviction under Section(s) 558.011 and 560.011, RSMo., in that on or about April 6, 2009, in the County of Washington, State of Missouri, the defendant, while being held in custody after arrest for burglary, a felony, knowingly escaped from custody.

However, Respondent was not in custody after arrest for burglary. At the time Respondent absconded, he was being held in custody pursuant to a capias warrant issued for his failure to appear at his probation revocation hearing, where burglary was the underlying offense.

The problems with the Information in this case are analogous to those in State v. Murphy, 787 S.W.2d 794 (Mo.App. E.D.1990). In Murphy, the defendant, while on probation was arrested for a possible probation violation. Id. at 796. The day before the probation revocation hearing he escaped from custody. Id. At the time of escape he was not serving a sentence after conviction for robbery. Id. The State’s amended information charged the defendant with escape from confinement after conviction for robbery in the first degree. Id. at 796. We determined that this pleading did not state a crime under either of the alternative definitions in Section 575.210.1 RSMoJ.978. We stated:

Under the first alternative the state may allege escape from confinement after arrest for robbery. Under the second alternative the state may allege escape from confinement while serving a sentence after conviction for robbery. The amended information does not allege defendant was serving a sentence, an essential element of the second alternative, or confinement after arrest for robbery, an essential element under the first alternative. Accordingly, the amended information was insufficient.

Id. at 796.

Judge Crandall wrote an opinion concurring with the majority:

There is substantial evidence in the record to conclude that defendant was put on probation after a conviction for the crime of robbery in the first degree. He was later rearrested for that same crime. The reason for his rearrest for that crime was a possible probation violation. The term “possible probation violation” is simply an explanation for his rearrest for the underlying crime.
A probation revocation hearing is civil in nature in that a defendant is not entitled to the full panoply of rights that he has in a criminal trial. In this case the defendant had previously pleaded guilty and been sentenced. The purpose of the probation revocation hearing was to decide whether that sentence should be executed. If the hearing had occurred and the sentence been ordered executed, it would have been for the conviction of the crime of robbery in the first degree. The reason for ordering the execution of the sentence would have been based on a finding that defendant had violated the terms of his probation.
I agree with the majority that the amended information in this case was legally insufficient to charge defendant with a crime. This despite the fact that the evidence made a submis-sible case of the crime of escape from confinement after arrest for any crime. Section 575.210.1 RSMo (1986). The State simply failed to charge a crime supported by the evidence.

Id. at 797. In State v. Sapp, 55 S.W.3d 382, 384 (Mo.App. W.D.2001), the State argued that the reasoning set forth in Judge Crandall’s concurring opinion in Murphy, that an arrest for a possible probation violation is a “rearrest” for the underlying crime, was simply a matter of common sense. Sapp, 55 S.W.3d at 385. The State maintained that “ ‘[i]f that were not the case, individuals could, with complete impunity, hinder prosecution or resist or interfere with an arrest ... simply because the police were attempting to rearrest a fugitive for a particular crime after he or she had been placed on probation or parole.’ ” Id. (citations omitted). The Sapp court responded to that argument, and we reluctantly must agree, that,

[a]s compelling as the state’s common sense argument is, we are bound by the General Assembly’s statute. It is the General Assembly who determines what shall constitute hindrance of prosecution, and it has restricted it [sic] application to hindering officers from apprehending a person for conduct ‘constituting a crime.’ [The defendant] was not wanted by officers for conduct constituting a crime; hence, § 575.030.1(4) was not applicable to this case.

Id. at 385.

Violating the conditions of probation is not a criminal offense. Sapp, 55 S.W.3d at 383. “Indeed, this was the Supreme Court’s ruling in State v. Brantley, 353 S.W.2d 793 (Mo.1962), in which the court explained, ‘A violation of the conditions [of probation] is not a criminal offense, and a proceeding to revoke obviously is not a criminal prosecution within the constitutional provisions.’ ” Id., quoting Brantley, 353 S.W.2d at 796; see also Haynes, 17 S.W.3d at 620. Probation is power granted by the General Assembly to the judiciary to lessen the impact of a criminal sentence on the defendant, and probation operates independently of the criminal sentence. Sapp, 55 S.W.3d at 383; see also McCulley v. State, 486 S.W.2d 419, 423 (Mo.1972); Bell v. State, 996 S.W.2d 739, 743 (Mo.App. S.D.1999). Accordingly, the Information charging Respondent with escape from custody pursuant to an arrest for burglary fails to state a charge against Respondent, because he was in custody for failing to appear at a probation revocation hearing.

In his brief, Respondent claims that the parties stipulated at the hearing on the motion to dismiss that Respondent was not under arrest for burglary, but in fact for failure to appear at a probation revocation hearing. The probable cause statement issued by Gillam also indicates that the arrest warrant was for failure to appear at the probation revocation hearing. Even if the Information was amended to state that Respondent was being held in custody after being arrested for failing to appear at the probation revocation hearing, that charge would also be insufficient for the following reasons. Section 544.665, the failure to appear statute, provided as follows at the time Respondent failed to appear for his probation revocation hearing:

1. In addition to the forfeiture of any security which was given or pledged for a person’s release, any person who, having been released pursuant to sections 544.040 to 544.665, or upon a recognizance or bond pursuant to any other provisions of law, willfully fails to appear before any court or judicial officer as required shall be guilty of an offense and punished as follows....

The current version of Section 544.665 has been amended by the General Assembly to include probation or parole revocations in the categories of proceedings where it is a crime to fail to appear, to-wit:

1. In addition to the forfeiture of any security which was given or pledged for a person’s release, any person who, having been released upon a recognizance or bond pursuant to any other provisions of law while pending preliminary hearing, trial, sentencing, appeal, probation or parole revocation, or any other stage of a criminal matter against him or her, knowingly fails to appear before any court or judicial officer as required shall be guilty of the crime of failure to appear.

Section 544.665 RSMo Supp.2009. This change became effective August 28, 2009. Respondent’s actions leading to the escape charge occurred on April 6, 2009. Therefore, because at the time Respondent fled custody pursuant to an arrest warrant for failure to appear at his probation revocation hearing, such a proceeding was not included in the failure to appear statute, any information charging him with felony escape from custody based on a failure to appear would also be insufficient.

Based on the foregoing, we find that the trial court did not err in dismissing the Information charging Respondent with escape from custody after arrest for burglary. We also find that the parties’ stipulation that Respondent in fact escaped from custody pursuant to an arrest for failure to appear at his probation revocation hearing does not change this result, because the statute making failure to appear at a probation revocation hearing an independent crime was not in effect yet at the time Respondent failed to appear in this case. The State’s point on appeal is denied.

Conclusion

The judgment of the trial court is affirmed.

MARY K. HOFF, P.J., and NANNETTE A. BAKER, J., concur.

      . All statutory references are to RSMo 2008, unless otherwise indicated.

      . Section 575.210.1 provides:
      A person commits the crime of escape or attempted escape from confinement if, while being held in confinement after arrest for any crime, while serving a sentence after conviction for any crime, or while at an institutional treatment center operated by the department of corrections as a condition of probation or parole, such person escapes or attempts to escape from confinement.


author: GARY W. LYNCH, Judge.

text:
    WEBSTER COUNTY ABSTRACT CO., INC., D.D. Hamilton Co., and Missouri Land Title Association, Plaintiffs/Appellants, v. Stacy ATKISON, Recorder of Deeds of Webster County, and Recorders Association of Missouri, Defendants/Respondents, and Webster County, Missouri, by and through its duly elected Commission solely in their capacity as such, Paul Ipock, Presiding Commissioner, Billie Cunningham, Northern Commissioner, and Denzil Young, Southern Commissioner, Intervenor-Defendant/Cross-Appellant.
    Nos. SD 30191, SD 30197, SD 30199.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 10, 2010.
    Motion for Rehearing and Transfer Denied Dec. 1, 2010.
    Application for Transfer Denied Jan. 25, 2011.

      John E. Price, Carnahan, Evans, Cant-well & Brown, P.C., Springfield, MO, and Stephen K. Dexter and John T. Coghlan, Lathrop & Gage, L.L.P., Kansas City, MO, for Appellants.
    Chris Koster, Attorney General, and Cheryl Ann Schuetze, Assistant Attorney General, Jefferson City, MO, for Respondent Atkison.
    Sherry A. Mariea, Mariea & Sigmund, L.L.C., Jefferson City, MO, for Respondent Recorders’ Association of Missouri.
    William H. McDonald, McDonald & Associates, L.L.C., and Paul F. Sherman, Mann, Walter, Bishop & Sherman, P.C., Springfield, MO, for Cross-Appellant Webster County, Missouri.
   GARY W. LYNCH, Judge.

Two land title companies, Webster County Abstract Company, Inc. (“WCAC”), and D.D. Hamilton Company (“Hamilton”), sued the Recorder of Deeds of Webster County, claiming that the recorder violated the Sunshine Law, see section 610.010 et. seq., by charging fees for electronic copies of land records that exceeded the actual cost of reproducing those records. The trial court entered summary judgment in favor of the recorder on all claims of liability. Finding that summary judgment was appropriate, we affirm.

Factual and Procedural Background

This lengthy and somewhat procedurally complicated dispute began when WCAC and Hamilton filed a lawsuit on October 19, 2001, against the Recorder of Deeds of Webster County, who was at that time Nancy Jo Wester. WCAC and Hamilton sought a declaratory judgment that the fees charged by Wester for electronic copies of public land records were unlawfully excessive and further sought reimbursement of the sums charged in excess of the actual cost of reproducing the records. In addition, WCAC and Hamilton requested that the trial court enjoin Wester from enforcing her contractual restriction upon the further sale or dissemination of the copied land records to third parties.

In 2002, the Missouri Land Title Association (“MLTA”), a non-profit Missouri corporation composed of 175 member title companies located throughout Missouri, intervened in this case as a plaintiff. That same year, the Recorders Association of Missouri (“RAM”), an association of elected county recorders in the state, intervened as a defendant.

Webster County, Missouri (“Webster County”), filed a motion to intervene through its duly elected commissioners in November 2005, claiming it had a financial interest in the outcome of the litigation, but the trial court denied the motion. Webster County then filed a petition for writ of prohibition with this Court, seeking an order mandating its intervention, and we held that Webster County was a necessary party and had the right to intervene. State ex rel. Webster Co. v. Hutcherson, 199 S.W.3d 866, 874-75 (Mo.App.2006).

On December 16, 2004, before Webster County intervened, the parties in this case entered into a Stipulation of Uncontrovert-ed Facts. This stipulation provided the uncontroverted facts upon which the trial court ultimately entered summary judgment against WCAC, Hamilton, and MLTA (collectively “Title Companies”). The following facts are drawn therefrom.

Both WCAC and Hamilton are in the business of land title abstracting and insuring land titles. For many years, WCAC and Hamilton relied upon public records regarding land transactions and related filings obtained from the recorder’s office.

Although Wester was the duly elected Recorder of Deeds of Webster County at the outset of the litigation, she was replaced by Stacy Atkison in November 2002. Atkison was substituted as the real party in interest as the defendant in this case.

Before June 1, 2001, Wester charged members of the general public a fee of one dollar per page or image for copies of recorded documents but charged WCAC and Hamilton a reduced fee of 12½ cents per page. On or About April 26, 2001, Wester notified WCAC and Hamilton in writing of a proposed new fee agreement that would become effective on June 1, 2001. Pursuant to the agreement, the recorder of deeds would continue to provide, in electronic format, copies of recorded documents to the title companies for 12½ cents per page, with the condition that the title companies would be prohibited from duplicating the information obtained from Wester for dissemination to others. In the event that either WCAC or Hamilton chose not to sign the new agreement, Wes-ter would thereafter charge them one dollar per page like the rest of the general public. At all times after June 1, 2001, the fee of one dollar per page for copies of recorded documents, including electronic images, exceeds the recorder’s actual cost of making copies, including staff time and the cost of any disk or tape.

Hamilton signed the June 1, 2001, agreement proposed by Wester, while WCAC did not. Since June 1, 2001, WCAC and Hamilton have obtained their public records from the recorder’s office in electronic format by having them downloaded onto zip drives that they provided. From June 1, 2001, until March 21, 2003, the recorder charged Hamilton 12⅜ cents per page, while charging WCAC one dollar per page for copies of recorded documents in electronic format.

On March 20, 2003, Atkison notified WCAC and Hamilton that, beginning March 21, 2003, he would continue to provide a volume discount to persons or businesses purchasing over 2,000 copies of documents per month on a zip drive. However, the fee for such purchasers was increasing from 12½ cents per page to 60 cents per page. The new policy, which replaced the June 1, 2001, agreement, had no prohibition on the subsequent use or duplication of copied records.

Since the implementation of the March 21, 2003, policy, WCAC has continued to purchase computerized copies of recorded documents, paying 60 cents per page. Hamilton, however, has purchased no pub-lie records from Atkison since the start of the new policy and has instead purchased, or has otherwise been provided, its records in electronic format from WCAC.

WCAC and Hamilton assert they have been charged by Wester and then Atkison a per-page fee for electronic copies of recorded instruments in excess of the recorder’s actual cost to produce such copies, which they assert is the maximum amount allowed for electronic copies of public records under section 610.026.1(2). Atkison argues that section 59.310 allows a recorder to charge up to two dollars for the first page and one dollar per page thereafter for copies of recorded instruments. As such, Atkison denies that either title company was ever charged in excess of what that statute allows.

In 2005, the parties filed various motions for summary judgment, which essentially remained dormant pending resolution of Webster County’s attempt to intervene. While the writ case involving Webster County was pending, however, WCAC and Hamilton filed a separate petition against Webster County seeking recovery of the allegedly excessive fees based on Webster County’s claim that the monies paid to the recorder become county property. This separate action was consolidated with the underlying action on August 15, 2008, after Webster County was allowed to intervene as a party herein.

The parties again filed motions for summary judgment in 2009, except for RAM, which elected to continue to rely upon its motion filed in December 2005. Title Companies filed one Joint Motion for Partial Summary Judgment, while defendants Atkison, RAM, and Webster County each relied upon their separately filed Motions for Summary Judgment.

In them summary judgment motion, Title Companies sought a declaratory judgment that Atkison and his predecessor violated their statutory authority by charging WCAC and Hamilton in excess of the actual costs required for copying public records in electronic format and requested that Atkison and his successors be permanently enjoined from doing so in the future. In addition, Title Companies asked the trial court to decree that Atkison is not statutorily entitled to restrict the sale or dissemination of public information received from the recorder and sought a judgment ordering Atkison or Webster County to reimburse WCAC and Hamilton for the excessive charges previously paid by them. Atkison and RAM requested summary judgment on all claims of liability raised by Title Companies, and Webster County moved for summary judgment against Title Companies based on governmental or sovereign immunity.

On October 16, 2009, the trial court entered summary judgment in favor of defendants Atkison and RAM on all claims. In particular, the trial court concluded that section 610.026 of the Sunshine Law, which limits fees for electronic copies of public records to the actual cost of reproduction, does not apply to recorders of deeds because section 59.310 of the Missouri Recorders’ Statute provides a separate and specific fee structure for such copies. Therefore, Atkison and Wester did not act contrary to their statutory authority in charging above cost to reproduce records electronically. The trial court also held that the term “page” in the Missouri Recorders Statute includes electronic images and that “duplicate copies,” as used in section 59.310.6(8), RSMo Supp. 2001, represent only the second and subsequent duplications of the original document. Next, the trial court concluded that the issue of whether the Webster County recorder attempted to “privatize” the Webster County recorder’s office by prohibiting title companies from selling or disseminating land records is now moot because the recorder no longer has such a policy. Finally, the trial court denied Webster County’s summary judgment motion because the motion did not comply with the requirements of Rule 74.04(c)(1) but held that Webster County could not be held liable for damages in any event because summary judgment was being entered in favor of Atkison on all claims of liability.

WCAC and Hamilton’s appeal (No. SD30191), MLTA’s appeal (No. SD30199), and Webster County’s appeal (No. SD30197) timely followed.

WCAC and Hamilton’s and MLTA’s Appeals — Nos. SD30191 and SD30199

Title Companies raise three points on appeal. We address their points in the order presented.

Standard of Review

We review the trial court’s granting of summary judgment de novo, and view the record in the light most favorable to the party against whom judgment was entered. Seeck, v. Geico Ins. Co., 212 S.W.3d 129, 132 (Mo. banc 2007); American Std. Ins. Co. v. Hargrave, 34 S.W.3d 88, 89 (Mo. banc 2009). Summary judgment is appropriate where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. American Std. Ins. Co., 34 S.W.3d at 89. Furthermore, the issues presented to us relate to statutory construction and, as such, they are entirely matters of law, and no deference is given to the trial court’s determinations. Pendergraft v. Stewart, 123 S.W.3d 920, 923 (Mo.App.2004).

Fee Structure in Section 59.310 Controls

In their first point, Title Companies assert that the “trial court erroneously declared and applied the law in ruling that the Missouri Recorders’ Statute, § 59.310 RSMo permits a Recorder of Deeds to charge a fee up to $2.00 for the first page and $1.00 for each page thereafter for public records provided in electronic format!.]” Title Companies present three sub-points in support of this contention.

In their first sub-point, Title Companies posit that section 59.310 sets only the maximum fee a recorder can charge but does not mandate any particular amount and that this provision must be read in harmony with section 610.026 of the Sunshine Law, which specifies that only actual costs can be charged for copies of public records maintained electronically. We disagree and find that section 59.310 allows a recorder to charge up to the maximum amount provided in that section for copies of recorded instruments regardless of the Sunshine Law’s fee restrictions.

Section 59.310 states, in relevant part:

... Recorders of deeds shall be allowed fees for their services as follows:
(2) For copying or reproducing any recorded instrument, except surveys and plats: a fee not to exceed two dollars for the first page and one dollar for each page thereafter!.]

Section 59.310.6(2), RSMo Supp.2001 (formerly section 59.310.3(2), RSMo 2000) (emphasis added).

Section 610.026 provides, in pertinent part, the following:

1. Except as otherwise provided by law, each public governmental body shall provide access to and, upon request, furnish copies of public records subject to the following:
(1) Fees for copying public records, except those records restricted under section 32.091, RSMo, shall not exceed ten cents per page for a paper copy not larger than nine by fourteen inches, ...
(2) Fees for providing access to public records maintained on computer facilities ... shall include only the cost of copies, staff time [, which shall not exceed the average hourly rate of pay for staff of the public governmental body] required for making copies and programming, if necessary, and the cost of the disk, tape, [or other medium] used for duplication....

Section 610.026.1, RSMo Cum.Supp.2004 (language added in 2004 is enclosed in brackets) (emphasis added).

How much a recorder can lawfully charge for electronic copies of recorded instruments principally involves our interpretation of the above statutes and is an issue of first impression. Title Companies contend section 610.026.1(2) mandates that governmental entities can charge no more than “actual cost” for copies of electronic public records, while Atkison contends that the “plain and ordinary language of [section 610.026.1] specifically exempts its fee provisions where the General Assembly has otherwise provided by law a different fee structure.”

When construing a statute, our primary aim is to ascertain the intent of the legislature from the language used and give effect to that intent, remembering that “every word of a statute is presumed meaningful.” Gott v. Director of Revenue, 5 S.W.3d 155, 158 (Mo. banc 1999). “Where the language of a statute is clear and unambiguous, this Court will give effect to the language as written, and will not engage in statutory construction.” Dubinsky v. St. Louis Blues Hockey Club, 229 S.W.3d 126, 130 (Mo.App.2007).

The plain and unambiguous prefatory phrase in section 610.026.1 — “Except as otherwise provided by law” — must be given effect according to its plain meaning. This Court has construed “except as otherwise provided by law” to mean “except as otherwise provided by statute.” Oregon Co. R-IVSch. Dist. v. LeMon, 739 S.W.2d 553, 557 (Mo.App.1987); see also Yates v. Casteel, 329 Mo. 1101, 49 S.W.2d 68, 69 (1932). Thus, the purpose of that phrase is to excuse the requirements of section 610.026.1 if another statutory provision calls for a different fee arrangement. In other words, the pricing scheme contained in section 610.026.1 does not govern if a different statute relating to fees for obtaining copies of public records provides otherwise.

Here, the legislature, in section 59.310.6(2), specifically provides a fee structure distinct from section 610.026.1 for obtaining copies from a county recorder of recorded instruments, which the parties have stipulated are public records. The statute unequivocally states that recorders “shall be allowed for their services” to charge up to two dollars for the first page of a copy of a recorded instrument and up to one dollar for each additional page. Section 59.310.6(2) (emphasis added). Obviously, this pricing scheme is different than section 610.026.1, which limits fees for obtaining computerized records to actual cost. Therefore, as it concerns the charges at issue in this case, the fee structure in section 59.310.6(2) controls over the section 610.026.1 actual-cost limitation. Neither Atkison nor Wester ran afoul of their statutory authority with the fees they charged WCAC and Hamilton, since the amounts were well within the maximum limits provided for in section 59.310.6(2).

This determination is consistent with Deaton v. Kidd, 932 S.W.2d 804 (Mo.App.1996). In Deaton, the Western District of this Court dealt with a conflict between section 610.026 and a specific statutory provision that permits the Revisor of Statutes to sell copies of Missouri Revised Statutes on tape at a price that allows for a profit. Id. at 807. The Court held that “these specific provisions trump the Sunshine Law’s cost requirements.” Id. Likewise, section 59.310.6(2) controls over section 610.026.1 in this case.

Title Companies argue that section 59.310.6(2) merely provides a price ceiling, and does not dictate what the price for documents should be. Since section 610.026.1 deals specifically with electronic records, Title Companies contend, it should control and therefore limit what the recorder can charge to actual cost. This reasoning fails because, as Atkison points out, it would render section 59.310.6(2) meaningless because a recorder’s fee for electronic records would always be limited to the actual cost of reproducing them. A recorder of deeds would never be able to charge the per-page maximum amount because it is undisputed that the cost of reproducing one page of a recorded document, electronic or otherwise, will always be less than one dollar.

In their second sub-point, Title Companies argue that section 59.310.6(2) does not apply to records kept and reproduced in electronic format; therefore the actual-cost requirement of section 610.026.1 controls, and the fees Atkison and his predecessor charged for computerized records are excessive. Title Companies rely upon the definition of the term “page” as it is used in section 59.310.6(2) to support their argument. They contend that “page” refers only to something printed on paper and that, therefore, section 59.310.6(2) is not relevant to this case because this litigation concerns only records maintained electronically and then downloaded electronically onto a zip drive. Neither, as Title Companies point out, involves paper.

Title Companies admit that the word “page” as used in section 59.310.6(2) refers back to the term “recorded instrument” in that section. Their argument presupposes, without explanation or discussion, that the term “recorded instrument” means the record of an instrument maintained by the recorder, which in this case they point out is an electronic record, rather than a paper record with pages. That presupposition is faulty, however, because the term “recorded instrument” as used in section 59.310.6(2) refers to the original instrument after being recorded not the record of that instrument maintained by the recorder.

The term “recorded instrument” has never been statutorily defined. Beginning on January 1, 2002, the effective date of section 59.005, however, the legislature defined “[d]ocument or instrument” as “any writing or drawing presented to the recorder of deeds for recording [.] ” section 59.005(1), RSMo Supp.2001, and further defined “recorded” as “the recording of a document into the official public record, regardless of the process used [.] ” Section 59.005(7), RSMo Supp.2001. Applying these definitions, the legislature’s use of the term “recorded instrument” means any writing or drawing presented to the recorder of deeds that has been recorded into the official public record, regardless of the process used by the recorder for that purpose. Thus, the relevant inquiry under section 59.310.6(2) is not whether the records maintained by the recorder have pages, but rather, whether the instrument presented for recording that was subjected to the recording process by the recorder after such presentment consisted of one or more pages.

As of June 1, 2001, the beginning date of this controversy, section 59.310 defined “page” to mean “any writing, printing or drawing covering all or part of one side of a paper, other than a plat, not larger than 8 1/2 inches x 14 inches.” Section 59.310.1. Effective January 1, 2002, the definition was amended and moved to section 59.005(6). The definition was altered to remove the word “paper,” and “page” is now defined as: “any writing, printing or drawing printed on one side only covering all or part of the page, not larger than eight and one-half inches in width and eleven inches in height for pages other than a plat or survey [.] ” Section 59.005(6), RSMo Supp.2001. Nothing in the record before us suggests that any of the original instruments presented for recording and subjected to the recording process in Webster County during the relevant period did not consist of one or more pages as the term “page” has been statutorily defined under either statute in effect during that period. To the contrary, the only evidence in the record on this issue supports that each page in each such recorded instrument was assigned a unique page number by the recorder during the recording process, even though that process resulted in the recorder maintaining an electronic record of that instrument.

Even in the absence of the statutory definitions for “recorded” and “instrument,” it is clear that the legislature intended to refer to the number of pages in the original instrument subjected to the recording process rather than the number of pages, if any, in the record of that instrument maintained by the recorder. The former leads to uniformity in charges that are dictated by the composition of the original instrument, whereas the latter leads to non-uniform fees from county to county based upon a particular method of maintaining records dictated by each individual county recorder. While Wester and Atkison chose to maintain electronic records that arguably had no pages, an enterprising recorder could devise a paper record system that required four “pages” to maintain the l-ecord of a one page instrument presented for recording and, thus, quadruple his or her fees for copies provided of that instrument thereafter. The legislature would not have intended such an unreasonable and absurd result and we should avoid any construction of section 59.310 that would support such a result. See Murray v. Mo. Highway & Transp. Comm’n, 37 S.W.3d 228, 233 (Mo. banc 2001).

Finally, in their third sub-point, Title Companies argue that the trial court’s determination that the phrase “duplicate copies” in section 59.310.6(8), RSMo Supp. 2001, does not apply to the first electronic copy of a record misconstrues the plain meaning of the provision and leads to an unreasonable and absurd result. This is because, Title Companies contend, no individual or title company would ever need to request multiple electronic copies of the same record on one zip drive.

Section 59.310.6(8), which took effect January 1, 2002, states, “For duplicate copies of the records in a medium other than paper, the recorder of deeds shall set a reasonable fee not to exceed the costs associated with document search and duplication [.] ” Section 59.310.6(8), RSMo Supp.2001. Thus, for “duplicate copies” of electronic records, the recorder cannot charge a fee greater than actual cost.

Title Companies urge us to find that “duplicate” and “copy” are synonymous and that the legislature sandwiched the two terms together simply to make extra clear that the provision applies to any electronic reproduction of a recorded document. This construction is problematic because it ignores the plain meaning of the phrase “duplicate copies” and does not give effect to each word, essentially rendering the use of one or the other word redundant. Under the rules of construction, “we presume that the legislature did not insert superfluous language or idle verbiage in a statute.” Dubinsky, 229 S.W.3d at 130. Therefore, we presume that the legislature used “duplicate” and “copies” together in order to create a particular meaning that could not have been implemented by just using “duplicates” or “copies” autonomously. We find the legislature used the phrase “duplicate copies” to mean second or subsequent copies of a recorded instrument, which is obviously distinct from the first copy of a recorded instrument. The actual-cost restriction set forth in section 59.310.6(8) applies only when one requests multiple copies of a recorded instrument, and even then only to the second and subsequent copies.

This common-sense interpretation of the provision is confirmed by the legislature’s 2005 amendment to section 59.005, which added the following definition of “Duplicate”: “copies requested concurrently with, but in excess of one reproduction in any medium of a recorded instrument or document or collection thereof.” Section 59.005(3), RSMo Cum.Supp.2005. Title Companies argue that the purpose of this amendment was to change the law with respect to the meaning of “duplicate” and that such change indicates that the term must have had a different meaning before August 28, 2005, the amendment’s effective date. This reasoning, however, ignores the fact that a statutory amendment, especially one that simply involves adding a definition to a statute, can be used to clarify and not to change. “ ‘While an amendment to a statute must be deemed to have been intended to accomplish some purpose, that purpose can be clarification rather than a change in existing law.’ ” Andresen v. Bd. of Regents of Mo. W. State College, 58 S.W.3d 581, 589 (Mo.App.2001) (quoting State v. McGirk, 999 S.W.2d 298, 301 (Mo.App.1999)). In Andresen, the Court held that the legislature’s addition of a definition for “agency” to the State Personnel Law had the effect of clarifying, not changing the existing law. Andresen, 58 S.W.3d at 589. Likewise, the 2005 amendment to section 59.005 should be viewed as a mere clarification of the meaning of the word “duplicate” and not as an indication that the word had a different meaning beforehand.

Finally, Title Companies argue that this construction of section 59.310.6(8) is essentially unreasonable and pointless, since one would never need to obtain from the recorder multiple electronic copies of the same record, i.e., once a single electronic record is downloaded to a zip drive, it can easily be duplicated and accessed forever. Viewed from Title Companies’ narrow perspective as to how they intend to acquire, use, and profit from their one electronic copy of recorded instruments, perhaps this argument makes some sense. Perhaps, without so deciding, the legislature had no rational policy justification for differentiating between the fee allowed for the first copy of a recorded instrument, regardless of the type of copy medium requested, and the fee allowed for duplicate copies of that same instrument in a medium other than paper, when all one needs is a single electronic copy. Our responsibility, nevertheless, is to give effect to the plain and ordinary meaning of the statute as it is drafted, which we have done. Reviewing courts are “without authority to read into a statute a legislative intent contrary to the intent made evident by the plain language.” Welch v. Eastwind Care Ctr., 890 S.W.2d 395, 397 (Mo.App.1995). If, as Title Companies argue, the statute as written makes no practical sense as applied to their situation and their needs, it is the job of the General Assembly, not this Court, to make appropriate changes.

For all of the foregoing reasons, we conclude that Atkison and Wester have not charged WCAC and Hamilton unlawfully excessive fees. Section 59.310.6(2) allows the recorder of deeds to charge up to two dollars for the first page of the first copy of a recorded instrument, regardless of the requested copy medium, and up to one dollar per page thereafter. Title Companies’ first point is denied.

No Unlawful Attempt to Privatize Recorder’s Office

Title Companies’ second point asserts that the trial court erred in ruling that the recorder’s pricing policy “did not attempt to privatize the Webster County Recorder of Deeds by turning it into a profit center.” Title Companies’ point is premised solely upon their preceding argument that section 610.026.1 superimposes an actual-cost-to-copy limitation on the fees allowed to be charged by a recorder under section 59.310.6(2). Based upon this premise, Title Companies then reason that any charge for electronic copies in excess of the actual cost of making those copies allows a recorder to make a “profit” not authorized by law. Of course, our rejection of Title Companies’ premise in their first point means that any such “profit” is expressly allowed by section 59.310.6(2), as long as the recorder does not charge in excess of the maximum fees authorized in that section.

Furthermore, in the Deaton decision, the Western District held that the state’s Committee on Legislative Research did not violate the Sunshine Law by turning a profit on the sale of Missouri statute books in accordance with section 3.140. Deaton, 932 S.W.2d at 807. Title Companies attempt to distinguish Deaton by arguing that the statutory scheme discussed in Deaton contains more specific directives on how to calculate fees than the guidelines contained in section 59.310. This argument is groundless and arbitrary. Section 59.310 specifically sets forth the maximum amount of fees the recorder can charge based on the different services the recorder’s office provides. Moreover, Title Companies cite us to no legal authority requiring any threshold level of specificity a statute must meet in order to allow collection of fees in excess of the actual cost of services.

Finally, in their argument under this point, Title Companies beckon us to rule on the issue of whether a recorder of deeds can legally implement a policy restricting the sale or further dissemination of copies of public records, as attempted by Wester in the agreement in effect from June 1, 2001, to March 21, 2003. According to the uncontroverted facts, however, since that latter date, Atkison no longer prohibits title companies from selling or disseminating land records to third parties.

“ ‘The existence of an actual and vital controversy susceptible of some relief is essential to appellate jurisdiction.’ ” Armstrong v. Elmore, 990 S.W.2d 62, 64 (Mo.App.1999) (quoting State ex rel. Wilson v. Murray, 955 S.W.2d 811, 812-13 (Mo.App.1997)). “ ‘When an event occurs that makes a court’s decision unnecessary or makes granting effectual relief by the court impossible, the case is moot and generally should be dismissed.’ ” Id. (quoting State ex rel. Chastain v. City of Kansas City, 968 S.W.2d 232, 237 (Mo.App.1998)). Therefore, the more than seven-year hiatus in any controversy between the parties on this issue, coupled with the absence of any support in the record of any indication that the restriction will be reinstituted or enforced in the near future, renders this issue moot. Title Companies’ second point is denied.

No Unauthorized Tax

In their third point, Title Companies contend that the recorder’s copy fees constitute “an unlawful and unauthorized tax” because they are greater than actual costs.

The Missouri Constitution grants the power to tax to the General Assembly. Mo Const, art. X, § 1. Further, a “ ‘statute is presumed to be valid and will not be declared unconstitutional unless it clearly contravenes some constitutional provision.’ ” Doe I v. Phillips, 194 S.W.3d 833, 841 (Mo. banc 2006) (quoting Doe v. Roman Catholic Diocese of Jefferson City, 862 S.W.2d 338, 340 (Mo. banc 1993)). The fees charged by Wester and Atkison have been and are authorized by the General Assembly in section 59.310.6(2). Regardless of whether these fees constitute a “tax,” Title Companies have pointed to no constitutional provision to support their claim that the legislature was not authorized to enact these fee provisions. Title Companies’ third point is denied.

Webster County’s Appeal — No. SD30197

Webster County appeals the trial court’s denial of its motion for summary judgment, claiming that Webster County and its Office of Recorder of Deeds have complete sovereign immunity from Title Companies’ suit for damages. We deny this point on appeal because “the court’s denial of ... a motion for summary judgment is not a final judgment and is not reviewable on appeal.” Iowa Steel & Wire Co. v. Sheffield Steel Corp., 227 S.W.3d 549, 557 (Mo.App.2007).

Decision in all Appeals

The trial court’s judgment is affirmed.

BARNEY, P.J., and BURRELL, J„ concur.

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

      . As this occurred before Webster County filed its Motion to Intervene, it is not a party to the stipulation. Because our decision moots Webster County's position in this litigation, we need not address the effect, if any, of tire County's failure to join in this stipulation after it intervened herein.

      . The parties stipulated that the copies of recorded documents requested both before and after June 1, 2001, are copies of "public records” as that term is defined by section 610.010(6).

      . Rule references are to Missouri Court Rules (2009).

      . WCAC, Hamilton, and MLTA filed a combined appellants’ initial brief and appellants’ reply brief.

      . This issue was not ruled on by the trial court because it was, for all practical purposes, never presented to it. It was only raised in a footnote in Plaintiffs' Joint Memorandum in Support of their Objection to Defendant Stacy Atkison’s Motion for Summary Judgment. The footnote contained a single sentence with citations and no further argument or analysis.

      . A limited exception to this rule has been recognized when the merits of the denied motion for summary judgment "are completely intertwined with a grant of summary judgment in favor of an opposing party.” Dhyne v. State Farm Fire & Cas. Co., 188 S.W.3d 454, 456 n. 1 (Mo. banc 2006). Webster County does not in any manner contend or argue that the denial of its motion for summary judgment falls within this exception.


text:
    Stephanie MCCORMACK, Grant Alec McCormack, by and through his Next Friend, Stephanie McCormack, and Natalie Grace McCormack, by and through her Next Friend, Stephanie McCormack, Plaintiffs-Appellants, v. Joshua C. DOUGLAS, Defendant-Respondent, and Ebenezer Fire Protection District, Defendant.
    No. SD 30274.
    Missouri Court of Appeals, Southern District.
    Nov. 16, 2010.
    Motion for Rehearing or Transfer Denied Dec. 8, 2010.
    Application for Transfer Denied Jan. 25, 2011.

      Greggory D. Groves, Heather L. Rooney, Springfield, MO, for Appellants.
    Michael E. McCausland, Charles A. Ed-geller, Kansas City, MO, for Respondent Joshua C. Douglas.
   NANCY STEFFEN RAHMEYER, Presiding Judge.

Appellants, survivors of decedent Gary McCormack, brought a wrongful death claim against Joshua C. Douglas (“Respondent”), a volunteer firefighter, and the Ebenezer Fire Protection District. The court entered a grant of summary judgment in favor of Respondent on the basis of official immunity and the public duty doctrine. Appellants now appeal that grant of summary judgment entered against them. We find no error in the entry of summary judgment and affirm the judgment.

I. Undisputed Facts

On the early morning of October 6, 2007, emergency personnel were summoned to respond to a vehicular accident that occurred on White Tail and Highway 13 in Greene County. Both the Greene County Sheriffs Department (the “Department”) and the Ebenezer Fire Protection District (the “District”) were alerted to the accident. Sheriffs Deputy Gary McCormack, the decedent, responded to the call for the Department, while volunteer firefighter Respondent answered the call the District sent. Respondent radioed the District’s dispatcher that he was en route to the emergency call. The dispatcher then instructed him to drive to Fire Station One to pick up an ambulance-type vehicle equipped with rescue and medical equipment. Respondent proceeded to travel from his residence in a vehicle equipped with emergency lights and sirens, which were activated.

En route to Fire Station One, the front of Respondent’s vehicle, which was traveling north on Farm Road 145, collided at an intersection with the left front fender of the vehicle driven by the decedent, who was traveling west on Route WW driving a fully marked Department patrol car with its emergency lights and sirens activated. Deputy McCormack died from blunt force trauma as a result of the collision. At the intersection where the collision occurred, Farm Road 145 and Route WW, no traffic control devices governed the movement of the decedent’s vehicle, while a stop sign governed Respondent’s movement, requiring him to stop and yield to traffic. The speed limit on Route WW is fifty-five miles per hour where Route WW and Farm Road 145 intersect. The speed limit on Farm Road 145, prior to reaching the stop sign at Farm Road 145 and Route WW, is forty-five miles per hour. Respondent was injured in, and has no memory of, the collision. There were no eye witnesses to the collision.

An accident reconstruction report prepared by the Missouri State Highway Patrol determined that the decedent’s cruiser was traveling about ninety-three miles per hour as it approached the intersection where the collision occurred, and slowed to about seventy-five miles per hour at impact, and that Respondent’s vehicle was going approximately twenty-seven miles per hour at impact. Timber and vegetation along the southeast corner of the intersection where Route WW and Farm Road 145 meet restricts the view of drivers traveling north on Farm Road 145 and, therefore, a driver traveling northbound on Farm Road 145, as Respondent was immediately preceding the collision, cannot see westbound traffic on WW unless the driver pulls north of the stop sign. The report concluded that the collision was caused by Respondent’s failure to stop or slow his vehicle at the stop sign posted for northbound traffic on Farm Road 145 as necessary for safe operation. The District’s “Intersection Crossing Policy,” which applies to both stop signs and stop lights, required the District’s firefighters when “crossing on red” in response to an emergency call to come to a complete stop, establish eye contact with drivers of other vehicles, wait two seconds, and then proceed with caution.

Appellants brought suit alleging negligence by Respondent and the District under the doctrine of respondeat superior. Respondent moved for summary judgment, asserting that official immunity and the public duty doctrine insulated him from liability. The trial court granted Respondent’s motion and entered judgment in favor of Respondent. On appeal, Appellants contend that Respondent is not entitled to the protections of official immunity or the public duty doctrine.

II. Analysis

We review a summary judgment de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is proper where the motion, response, reply, and sur-reply “s how that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law[.]” Rule 74.04(c)(6). Under de novo review of a summary judgment, this Court will review the record from the trial court and independently decide whether there were no genuine issues of material fact and that the successful party was entitled to judgment as a matter of law. In re Gene Wild Revocable Trust, 299 S.W.3d 767, 773 (Mo.App. S.D.2009). We review the record in the light most favorable to the party whom judgment was entered against, and draw all reasonable inferences in that party’s favor. ITT, 854 S.W.2d at 376. A “genuine issue” exists where two plausible, but contradictory, accounts of the essential facts are contained in the record. Id. at 382. The burden of establishing a legal right to judgment and the absence of any genuine issues of material fact is on the movant. Id. at 380.

Official immunity is a doctrine that shields public employees from liability for acts of negligence during the course of their official duties in the performance of discretionary acts. Southers v. City of Farmington, 263 S.W.3d 603, 610 (Mo. banc 2008). The doctrine does not shield public employees from liability for torts committed in the performance of ministerial acts. Id. “A discretionary act requires the exercise of reason in the adaptation of means to an end and discretion in determining how or whether an act should be done or course pursued.” Id. A ministerial act is an act “ ‘of [ ] clerical nature which a public officer is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, -without regard to his own judgment or opinion concerning the propriety of the act to be performed.’ ” Rustici v. Weidemeyer, 673 S.W.2d 762, 769 (Mo. banc 1984) (quoting Jackson v. Wilson, 581 S.W.2d 39, 43 (Mo.App. W.D.1979)).

Three factors are considered in determining whether an act is ministerial or discretionary: “(1) the nature of the public employee’s duties; (2) the extent to which the act involves policymaking or exercise of professional judgment; and (3) the consequences of not applying official immunity.” Southers, 263 S.W.3d at 610. The policy behind official immunity encourages officials to make decisions that affect public safety and welfare free from “[t]he fear of personal liability.” Green v. Denison, 738 S.W.2d 861, 865 (Mo. banc 1987), overruled on other grounds by Davis v. Lambert-St. Louis Int’l Airport, 193 S.W.3d 760, 766 n. 8 (Mo. banc 2006). “Even a discretionary act, however, will not be protected by official immunity if the conduct is willfully wrong or done with malice or corruption.” Southers, 263 S.W.3d at 610. Under Southers and Davis, public officials are engaging in discretionary conduct when responding to emergency calls in emergency vehicles. Southers, 263 S.W.3d at 618-19; Davis, 193 S.W.3d at 763.

The public duty doctrine, on the other hand, protects public employees from civil liability for the breach of a duty owed to the general public, as opposed to a particular individual. Southers, 263 S.W.3d at 611. “This public duty rule is based on the absence of a duty to the particular individual, as contrasted to the duty owed to the general public.” Id. The rule does not shield a public employee from a breach of a duty involving a ministerial act in which the injured party had a “ ‘special, direct, and distinctive interest.’ ” State ex rel. Twiehaus v. Adolf, 706 S.W.2d 443, 445 (Mo. banc 1986) (quoting Oyler v. State, 618 P.2d 1042, 1050 (Wyo.1980)). That is, the public duty doctrine does not apply “when injury to a particular, identifiable individual is reasonably foreseeable as a result of a public employee’s breach of duty.” Southers, 263 S.W.3d at 612. Whether an individual has a special, direct, and distinct interest is judged on a case-by-case basis. Id. Southers makes clear that a public employee’s conduct in responding to an emergency arises from a duty owed to the public. Id. at 618-20.

Like the official immunity doctrine, the public duty doctrine does not shield a public employee from liability where the employee acts in bad faith or with malice. Id. at 612. Under Southers, the police officer, acting as an emergency responder, was protected by the public duty doctrine and had official immunity in the emergency response situation where he was operating his emergency vehicle in an emergency situation and did not act willfully wrong, in bad faith, or with malice. Southers, 263 S.W.3d 603. Appellant urges this Court to find that Respondent’s conduct in violating the District’s policy and with no clear view of oncoming traffic, by running the stop sign, was willfully wrong, in bad faith, or with malice, and, as such, falls within an exception to the doctrines.

Malice exists where one “ ‘wantonly does that which a man of reasonable intelligence would know to be contrary to his duty and which he intends to be prejudicial or injurious to another.’ ” Adolf, 706 S.W.2d at 447 (quoting Grad v. Kaasa, 312 N.C. 310, 321 S.E.2d 888, 890 (1984)). An act is wanton when “ ‘done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others.’ ” Id. (quoting Grad v. Kaasa, 312 N.C. 310, 321 S.E.2d 888, 890-91 (1984)). Lastly, bad faith “ ‘embraces more than bad judgment or negligence. It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud.’ ” Id. (quoting Catalina v. Crawford, 19 Ohio App.3d 150, 483 N.E.2d 486, 490 (1984)).

In Southers, a police officer joined a pursuit as the third police vehicle following a suspect. Southers, 263 S.W.3d at 608. This arguably violated the police department’s vehicular pursuit policy, which stated that “police pursuits should normally be limited to no more than one primary vehicle and one backup vehicle, unless specifically instructed otherwise[.]” Id. The plaintiff driver had pulled to the side of the road to allow the first two police cars to pass, and, believing the chase had passed her, pulled her vehicle from the roadside into the lane, where it was struck by the third officer’s patrol car. Id. Under those facts, our supreme court found that the defendant officer was entitled to the protection of both the public duty and official immunity doctrines. Id. at 622.

In this case, Respondent, like the officer in Southers, is accused of violating the District’s protocol when responding to an emergency call with lights and sirens activated. Appellants claim that Respondent’s violation of the District’s internal “Intersection Crossing Policy” in driving through a stop sign without stopping was willfully wrong, in bad faith, or with malice. This allegation, if proven at trial, is simply an allegation of negligence and, thus, does not rise to the level of bad faith or malice. There was simply no evidence produced prior to the grant of summary judgment, nor can there be given the fact of no eye witnesses and the lack of Respondent’s memory, that Respondent drove through the stop sign with bad faith or malice. As such, it is an act of negligence that was not willfully wrong while in the process of answering the emergency call. The facts, as alleged by Respondent in the summary judgment motion, in the light most favorable to Appellants, amount to nothing more than negligence during the course of Respondent’s duties in the performance of discretionary acts.

We find no meaningful distinction between this case and Southers sufficient to hold that Respondent acted willfully wrong, in bad faith, or with malice even if he did run the stop sign when his vehicle collided with Deputy McCormack’s vehicle.

The judgment of the trial court is affirmed.

BATES, J., FRANCIS, J., concur.

      . Appellants are Stephanie McCormack, Grant Alec McCormack, and Natalie Grace McCormack, decedent’s wife and two minor children.

      . The reconstruction report found that had Respondent stopped his vehicle just past the stop sign on Farm Road 145, but without entering the intersection, he would have had an unobstructed view of the patrol car the decedent was driving for at least fifteen seconds.

      . All references to rules are to Missouri Court Rules (2010), unless otherwise specified.

      . To be clear, we are not stating that running a stop sign can never amount to a claim of bad faith, we are simply stating that in this case, the allegation has not done so.