                                         In the
                         Missouri Court of Appeals
                                  Western District
AARON BIRDSONG,                              )
                                             )
                Respondent,                  )   WD78049
                                             )
v.                                           )   OPINION FILED: May 19, 2015
                                             )
CHILDREN'S DIVISION, MISSOURI                )
DEPARTMENT OF SOCIAL                         )
SERVICES,                                    )
                                             )
                 Appellant.                  )

                Appeal from the Circuit Court of Cole County, Missouri
                         The Honorable Daniel R. Green, Judge

     Before Division Three: Mark D. Pfeiffer, Presiding Judge, Gary D. Witt, Judge and
                              Anthony Rex Gabbert, Judge


        The State, on behalf of the Missouri Department of Social Services Children's

Division (the "Division"), brings this appeal challenging the trial court's award of

attorney's fees following its grant of summary judgment to Aaron Birdsong ("Birdsong").

The State argues that the award of attorney's fees has no statutory basis and that
Birdsong's case does not fall within any exception to the American Rule.1 For reasons

explained below, we reverse and vacate the award of attorney's fees.

                              FACTS AND PROCEDURAL HISTORY2

         The Division brought an administrative action that Birdsong had used his position

as a teacher and track coach in a public school to sexually abuse a seventeen-year-old

student. The Division alleged, based on its investigation, that Birdsong had committed

the following acts:

         In the fall of 2010, Birdsong was a teacher and a track coach at Eldon High

School. The child victim was a seventeen-year-old female student who was on the track

team.        Birdsong began an inappropriate relationship with her, which included an

exchange of hundreds of "romantic" text messages (including more than 200 over the

course of 24 hours). One text message included a photograph in which the victim was

wearing only her underwear. Birdsong also made comments in the text messages about

trying to see her breasts as she picked up books while at school. Birdsong told the girl he

was having difficulty in his marriage and also instructed the girl not to tell anyone about

their relationship because he would get in trouble. Birdsong invited the victim to his

home on the pretense of babysitting for him and his wife, but then he began kissing the

victim on the lips and touching her breasts and thigh. The victim became scared and left

the house.


         1
           The "American Rule" provides that each litigant should bear his or her own fees. Hinton v. Dir. of
Revenue, 21 S.W.3d 109, 112 (Mo. App. W.D. 2000).
         2
           The evidence is not viewed in the light most favorable to the circuit court's decision; rather, the record is
viewed on the whole to see if sufficient competent and substantial evidence supports the award of attorney's fees.
Stone v. Mo. Dep’t of Health and Sr. Servs., 350 S.W.3d 14, 20 (Mo. banc 2011).

                                                            2
         On January 10, 2011, the Division received a hotline call reporting child sexual

abuse by Birdsong against the victim.3 Birdsong was arrested the next day and two

separate administrative actions were instigated against him.                             The first was a child

protection services investigation by the Division to either substantiate or refute the

alleged actions against the victim. The second was a disciplinary action filed months

later by the Missouri Department of Elementary and Secondary Education ("DESE").

The disciplinary action was filed pursuant to section 168.071.1, which authorizes the

Board of Education to request that Birdsong's teaching certificate be "disciplined" for a

violation of 5 CSR 80-800.300(1)(C)4 where there is "evidence of the certificate holder's

incompetence, immorality, or neglect of duty." Birdsong was placed on administrative

leave and later voluntarily resigned from his teaching position.5

         Three months after the hotline call, the Division's Out of Home Investigation Unit

("OHI") completed its investigation and concluded that Birdsong had committed "sexual

maltreatment" of the student victim.6 Birdsong appealed the Division's finding. Two

months later, the OHI upheld the Division's finding and referred it to the Child




         3
            Due to public policy considerations, the identities of both the victim and the reporter are entitled to
anonymity. See Jamison v. Mo. Dep’t of Social Servs., 218 S.W.3d 399, 416 (Mo. banc 2007).
          4
            This was the regulation in effect at the time of the charge. It has since been renumbered as 5 CSR 2-
400.230.
          5
            The results of the action by DESE against Birdsong's teaching certificate are not before the court in this
action; rather, only the separate action by the Division is before us. The outcome of the DESE hearing is alleged by
the State in its brief to be that Birdsong's teaching certificate was revoked. This court denied the State's motion to
supplement the record before us with the records from DESE, but at oral argument Birdsong's counsel
acknowledged that his teaching certificate was revoked and that decision was not appealed.
          6
            "Sexual maltreatment" is a definition found in the Division's Child Welfare Manual. It is not, however,
contained in a statute or regulation; therefore, the trial court found that the Division's determination was based on an
erroneous legal definition.

                                                           3
Abuse/Neglect Review Board ("CANRB")7 for an administrative review. In Birdsong's

written request for review, he admitted to kissing the student, making comments about

looking down her shirt while she was in the school, and receiving a picture of her topless.

Following a hearing, the CANRB affirmed the finding of sexual abuse and ordered that

Birdsong's name be placed on the "central registry."8

         Birdsong filed a Petition for De Novo Review in the Circuit Court of Cole County,

alleging that the Division improperly used definitions of child sexual abuse that did not

comport with statutory definitions, thereby making its determination and subsequent

placement of his name on the central registry, erroneous. He then filed a motion for

summary judgment. The Division did not file a response to the motion for summary

judgment, but did appear and argue against the grant of the motion before the trial court.

The trial court granted Birdsong's motion for summary judgment and reversed the

Division's determination, finding that it erroneously employed a non-statutory definition

of sexual child abuse and that Birdsong's conduct did not fall within the definitions of

"sexual abuse of a child" in the statutes or regulations.9

         After being granted judgment in the Division's action but before the judgment was

final, Birdsong filed a motion to recover attorney's fees. Birdsong agrees that, under




         7
            Our Supreme Court has noted that the CANRB is not made up of division employees but of volunteers
appointed by the governor and representing a cross-section of society. See Jamison, 218 S.W.3d at 413 n.15.
          8
            The central registry is a list of perpetrators of child abuse and/or neglect or persons convicted of certain
listed crimes against children. § 210.110(3). All statutory references are to RSMO 2000 cumulative as currently
supplemented unless otherwise noted.
          9
            The Division is not appealing this finding or the grant of summary judgment to Birdsong. It is appealing
only the award of attorney’s fees to Birdsong based on the Division's actions.

                                                            4
existing case law interpreting section 536.087,10 the CANRB review is not a contested

case, which is a requirement for an award of attorney's fees under chapter 536.

        Birdsong argues that he is entitled to an award of attorney's fees under an

exception to the American Rule doctrine. The American Rule states that each party

should bear his or her own attorney's fees unless a recognized exception applies.

Birdsong contends that "special circumstances" exist in this case that meet such an

exception.11 Birdsong argues that, because the Division relied on internal definitions of

child sexual abuse that were not properly promulgated or codified, its conduct was more

egregious and constituted "special circumstances."                     Attached to his motion was his

counsel's billing statement for services in the amount of $34,451.84. Also attached was

an affidavit from an expert witness who was a local attorney attesting to the

reasonableness of the total fees and to the $275 hourly billing rate. Included among his

counsel's fees were time and expenses related to Birdsong's criminal matter, the DESE

action, the Division's investigation of the hotline call, the CANRB review, the subsequent

petition for de novo review filed in circuit court, as well as the motion for summary

judgment.12

        The trial court granted the motion for attorney's fees, finding, inter alia, that

"special circumstances" existed which were that the Division knowingly and intentionally

applied "its own internal standard for child sexual abuse and child abuse which are

contrary to the Code of State Regulations and Missouri Statutes" in determining that

        10
            Lipic v. Mo. Dep’t of Social Svcs., 93 S.W.3d 839, 842 (Mo. App. E.D. 2002).
        11
            Exceptions to the American Rule are discussed infra.
         12
            Counsel for Birdsong acknowledged at oral argument that approximately $3,000 of the total bill was
associated with the DESE action.

                                                        5
Birdsong had committed abuse against this victim. The court then awarded Birdsong's

counsel the full amount of fees requested. This appeal follows.

                                         ANALYSIS

       In Point I, the State argues that the trial court erred in awarding attorney's fees

because there was no statutory authority to do so and Birdsong does not fall within any

recognized exception to the American Rule. In Point II, the State contends that the trial

court further erred by awarding attorney's fees related to the DESE's separate disciplinary

action because Birdsong's defense of that action does not fall within the "collateral

litigation" exception, nor any other exception, to the American Rule. Because we agree

with the State on Point I, we do not reach Point II.

                                    Standard of Review

       Whether an award of fees and expenses pursuant to section 536.087 was made

contrary to law or in excess of the court's or agency's jurisdiction or authority raises a

question of law which we review de novo. Baker v. Dep’t of Mental Health, 408 S.W.3d

228, 232 (Mo. App. W.D. 2013). Moreover, "[w]hether an award of fees and expenses is

supported by competent and substantial evidence is judged by examining the record as a

whole." Id. (citation omitted). "The evidence is not viewed in the light most favorable to

the [ ] decision." Id. (citation omitted).

                                             Discussion

       "Under the 'American Rule,' orders requiring one party to pay another party's

attorney's fees or other expenses ordinarily are not permitted unless the parties' contract

or a statute authorizes the court to make such an award." Garland v. Ruhl, 455 S.W.3d

                                                 6
442 (Mo. banc 2015) (citations omitted). "Even when a statute allows a court to award

attorney's fees, the doctrine of sovereign immunity prohibits Missouri courts from

ordering the state to do so unless the legislature specifically waives that immunity." Id.

(citing Richardson v. State Highway & Transp. Comm'n, 863 S.W.2d 876, 882 (Mo. banc

1993)). "Section 536.087 provides such a waiver under specified circumstances, and

such waivers are to be strictly construed." Id. (citation omitted).

       "Section 536.087 waives sovereign immunity only 'for unjustified positions by

state agencies in contested administrative cases.'" Id. (citation omitted) (emphasis in

original). It provides as follows:

       A party who prevails in an agency proceeding or civil action arising
       therefrom, brought by or against the state, shall be awarded those
       reasonable fees and expenses incurred by that party in the civil action or
       agency proceeding, unless the court or agency finds that the position of the
       state was substantially justified or that special circumstances make an
       award unjust.
§ 536.087.1 (emphasis added).

       As used in section 536.087, the following terms mean:
       (1) "Agency proceeding", an adversary proceeding in a contested case
       pursuant to this chapter in which the state is represented by counsel, but
       does not include proceedings for determining the eligibility or entitlement
       of an individual to a monetary benefit or its equivalent, child custody
       proceedings, eminent domain proceedings, driver's license proceedings,
       vehicle registration proceedings, proceedings to establish or fix a rate, or
       proceedings before the state tax commission;
§ 536.085(1) (emphasis added).

A. Decision of the CANRB Does Not Fall Under Section 536.087

       To qualify for fees under the statute, Birdsong's award of fees must be as a result

of an adversary proceeding in a contested case in which the State is represented by


                                              7
counsel. § 536.085(1). Birdsong correctly points out that the issue of whether the

decision affirmed by the CANRB constitutes a contested case has already been decided

by Missouri courts. In Lipic v. Missouri Department of Social Services, 93 S.W.3d 839,

842 (Mo. App. E.D. 2002), the Eastern District of our court held "that a CANRB hearing

is not an 'adversary proceeding in a contested case' and therefore is not an 'agency

proceeding.'" 93 S.W.3d at 843. "Thus, section 536.087 does not authorize an award of

fees, expenses, or costs to the prevailing party in a CANRB hearing or a civil action

arising therefrom." Id. Ten years later, this court came to the same conclusion in Goines

v. Missouri Department of Social Services, 364 S.W.3d 684 (Mo. App. W.D. 2012).

      Thus, based on Lipic and Goines, the Division's decision and its review by the

CANRB fall outside the purview of the statute, making an award of attorney's fees based

on section 536.087 impermissible.      Because section 536.087 does not apply, and

Birdsong points us to no other statute permitting an award of fees under these facts, the

exception to the American Rule authorizing an award of fees if authorized by statute does

not apply.

B. The Unusual Circumstances Exception to the American Rule Does Not Apply

      The gist of Birdsong's argument is that this case falls under the exception to the

American Rule, "where very unusual circumstances exist so it may be said equity

demands a balance of benefits . . . ." Gerken v. Sherman, 351 S.W.3d 1, 13 (Mo. App.

W.D. 2011) (internal quotation omitted). "Unusual circumstances" have been found

where a party's conduct is "frivolous, without substantial legal grounds, reckless or

punitive." Goralnik v. United Fire & Cas. Co., 240 S.W.3d 203, 211 (Mo. App. E.D.

                                           8
2007) (internal quotation omitted).              However, our Supreme Court has noted that

"Missouri courts 'have very rarely found the very unusual circumstances that permit the

award of attorneys' fees' in the absence of statute or contract, and listed numerous

examples where such claims were denied."13 Goralnik, 240 S.W.3d at 212 (citing David

Ranken Jr. Technical Institute v. Boykins, 816 S.W.2d 189, 193 (Mo. banc 1991) (special

circumstances were not found even where acts of fraud and conspiracy were confirmed).

        On the other hand, "unusual circumstances" were found where a party blatantly

disregarded a Supreme Court mandate which necessitated that another action be filed by

the aggrieved party. See Grewell v. State Farm Mut. Auto. Ins. Co., 162 S.W.3d 503, 507

(Mo. App. W.D. 2005) (a party refused to comply with a Supreme Court mandate to

produce documents, causing a second declaratory judgment action to be filed, special

circumstances justified an award of attorney’s fees). "Special circumstances" have also

been held "in unusual or 'extremely complicated' cases in which the parties have had to

take novel legal actions to achieve a result." Lipic, 93 S.W.3d at 843 (citation omitted).

        Here, the facts or legal issues did not rise to the level of extremely complicated.

Indeed, most of the relevant facts of the incident were admitted by Birdsong in his

request for administrative review; the only fact that appeared to be in dispute was

whether he requested the topless photo that the victim sent to his cell phone or the victim

sent the photo absent a request from Birdsong. As for legal complexities, the only legal

argument made by Birdsong was that his actions did not fit the statutory definition of

        13
           Birdsong makes no allegation that he had entered into any form of a contract with the Division which
would provide for attorney's fees to be assessed; thus, the contract exception to the American Rule is also
inapplicable.

                                                      9
"child sexual abuse," thus making the inclusion of his name on the central registry

erroneous. There were no novel legal theories presented; rather, Birdsong merely argued

statutory construction.

       We acknowledge that Birdsong's counsel is extremely well respected in the legal

community and based on the record before us, provided outstanding legal representation

of Birdsong throughout this matter. However, we fail to see how a state agency taking

administrative action to protect a child from these types of admitted and grossly

inappropriate acts by a school teacher and coach could rise to the level where equity

would require a balance of benefits in favor of the teacher.

C. The State's Position Was Substantially Justified

       Birdsong argues that the findings of the trial court confirm that the Division's

position was not substantially justified, which is a back-door argument to apply section

537.087.1. The trial court found that under 13 CSR 45-2.010(2)(A), Birdsong's actions

did not fall within the definition of "child abuse" as there was no allegation or proof by

the Division of any "physical injury or emotional abuse" inflicted on the victim. It

further found that Birdsong's conduct did not fall within the definition of "child sexual

abuse" under 13 CSR 45-2.012[sic](2)(E) because that regulation applies by its terms

only to a child victim who is under the age of seventeen and the victim in this matter was

seventeen at the time of Birdsong's actions. Further, although the Division brought its

action against Birdsong for "sexual maltreatment," the definition of "sexual

maltreatment" which it used has never been adopted in a statute or regulation. And by



                                            10
failing to file an answer to Birdsong's motion for summary judgment, it was unable to

develop any additional grounds to proceed against Birdsong before the motion was heard.

       Despite these findings, we disagree that the Division's decisions were not

"substantially justified." Indeed, the legislature expressly cautioned that the result of the

agency proceeding or civil action "creates no legal presumption that its position was not

substantially justified." § 536.087.3

       Here, the victim was under the age of eighteen which means that, by statute, she

was a "child." § 210.110(4). The Division received a hotline call regarding sexual abuse

against her by a teacher, the facts of which were wholly substantiated through an

independent investigation. The Division's "Child Welfare Manual," addressed the factual

scenario that occurred, terming it "sexual maltreatment":

       Sexual Maltreatment - (As reportable under the Child Abuse/Neglect Law).
       The use, persuasion, inducement, enticement or coercion of any child under
       the age of 18, to engage in, or having a child assist any other person engage
       in, any sexually explicit conduct by those responsible for the child's care,
       custody or control.

       The Division operated under an assumption that "sexual maltreatment" was

statutorily reportable under the Child Abuse/Neglect Law and was statutorily equivalent

to sexual child abuse. Although the circuit court later held this to be incorrect, a finding

of an incorrect position taken by the State does not mean that the decisions of its agency

were not substantially justified. Hernandez v. State Bd. of Registration for Healing Arts,

936 S.W.2d 894, 903 (Mo. App. W.D. 1997) (citation omitted). In light of the fact that

our legislature has instructed the Division that "the safety and welfare of children is



                                             11
paramount," we do not find the decisions made by the Division and CANRB to be

unjustified.14 § 210.112.1(1).

         Under the facts of this case, where Birdsong's admitted conduct is particularly

egregious in light of his position as a teacher and coach, we refuse to find "unusual

circumstances" such that equity would demand Birdsong be compensated for attorney's

fees he expended in defending this action.

D. The Collateral Litigation Exception to the American Rule Does Not Apply

         Another exception to the American Rule is designated as the "collateral litigation

exception." Gerken, 351 S.W.3d at 13 (internal citations omitted). "Where the natural

and proximate result of a wrong or breach of duty is to involve the wronged party in

collateral litigation, reasonable attorneys' fees necessarily and in good faith incurred in

protecting himself from the injurious consequence thereof are proper items of damages."

Essex Contracting, Inc. v. Jefferson Cnty., 277 S.W.3d 647, 657 (Mo. banc 2009). As

this court has previously held, in order "[f]or the collateral litigation exception to be

applicable, the plaintiff must have incurred attorney's fees in a different cause of action,

involving a different party, caused by a breach of duty by the defendant." Collier v.

Manring, 309 S.W.3d 848, 853 (Mo. App. W.D. 2010) (citation omitted). The Eastern

District of our court held that "collateral litigation occurs when a person breaches a

contract causing one of the other parties to sue or be sued by an outside third party."

Goralnik, 240 S.W.3d at 212 (citation and internal quotation marks omitted).

         14
             We do find that the Division's reliance on the definition of "Sexual Maltreatment" contained in its
manual was not appropriate, as that definition is not found in any statute or regulation. Future reliance by the
Division on the definition of "Sexual Maltreatment" as contained within its manual will no longer be substantially
justified following the finality of this opinion absent that definition's proper adoption in statute or regulation.

                                                         12
       Birdsong argues that the collateral exception applies with respect to the DESE

disciplinary matter filed against his teaching certificate because it was instigated after the

erroneous finding by the Division and CANRB. He is incorrect. While the hotline call to

the Division may have given rise to DESE's actions to revoke Birdsong's teaching

certificate, it was Birdsong's admitted inappropriate actions against the victim which

caused DESE to take action regarding his teaching certificate. The DESE matter was not

collateral to the Division's decision; rather, it was collateral to Birdsong's inappropriate

behavior with a female student as made known to Birdsong's superiors following a

hotline call. Thus, the collateral litigation exception does not apply under these facts.

       For all of the reasons stated above, Point I is granted.

                                      CONCLUSION

       Pursuant to section 536.087.7, we reverse and vacate the trial court's attorney's fee

award because it was contrary to law.




                                           __________________________________
                                           Gary D. Witt, Judge

All concur




                                             13
