Malicious Prosecution

Jay and Kendall Nygard had a long and contentious relationship with the City of Orono, Minnesota (City).  The issues between the Nygards and the City began after an unpermitted wind turbine had been installed by the Nygards on their property.  In 2019, the Nygard’s purchased their neighbor’s property as part of a mediated settlement.  Shortly after purchasing the neighbor’s property the Nygards discovered the newly purchased home had issues with the driveway.  The issues with the driveway reignited issues between the City and the Nygards.  

After discovering defects with the driveway Jay contacted the City by email because he believed the driveway was being damaged by water runoff and wanted the city to correct the issue.  The City advised Jay and Kendall Nygard by email that the issues with the driveway were the result of the driveway being improperly built and offered advice about ways the issue could be remediated. Jay then responded in an email to the City by telling the City employees the City was incompetent and renewed his demand that the City fix the issue.  Jay Nygard then began repairs of the driveway but did not obtain a permit as required by the City.  

The City became aware of the unpermitted work and contacted the Nygards and advised the City would permit the Nygards to apply for an after the fact permit.  However, when Jay applied for the permit Jay added additional requests for the permit that exceeded the scope of the fixing the driveway.  The additional work included footing for a wind turbine. The City rejected the additional requests that exceeded the work on the driveway and provided four additional conditions that needed to be agreed to by the Nygards before the permit would be issued.  The City also requested the permit fee be paid.  Jay Nygard crossed out the additional conditions required by the city and submitted the form for the permit.  The City refused to issue the permit. Jay continued to work on the property and failed to comply with the permitting process.  The issue was referred to the City Attorney who filed charges against Jay and Kendall Nygard for failing to obtain a permit before conducting repairs on the driveway.

At the trial the court dismissed the charges against Kendall Nygard.  The judge determined the City ordinance in this matter only permits the city to charge “the individual performing the work” and that person was required to apply for a permit before replacing a driveway. The basis of the decision by the court was that at trial it was determined that Jay performed the work and there was not any evidence presented that Kendall performed any work on the driveway. (The 8^th Circuit did not explain if Jay was found guilty at trial.  Instead, it provided the trial court had found Jay and the City had both acted in good faith.  (What does that even mean?))

After the trial, Jay and Kendall sued the City in federal court, arguing the Code was void for vagueness. “They also raised a First Amendment retaliation claim, an abuse-of-process claim, and a malicious-prosecution claim. The district court dismissed all claims.” On appeal, the 8^th Circuit Court of Appeals affirmed the dismissal of all claims except one.  The 8^th Circuit remanded Kendall’s malicious prosecution claim.  The 8^th Circuit determined that the initial complaint alleged sufficient facts to survive a motion for summary judgment that the City lacked probable cause to prosecute Kendall under the Code. Kendall then proceeded with a new malicious prosecution claim which the trial court dismissed because she could not prove the City prosecuted her with malicious intent.

To prevail on a claim of malicious prosecution the plaintiff must prove three elements.  The three elements that must be shown include: (1) the action must be brought without probable cause or reasonable belief that the plaintiff would ultimately prevail on the merits; (2) the action must be instituted and prosecuted with malicious intent; and (3) the action must terminate in favor of the defendant. In this matter Kendall could not satisfy the second element. Malicious intent “is a state of mind to be proved as fact.” Allen v. Osco Drug, Inc., 265 N.W.2d 639, 645 (Minn. 1978). It requires that the actor “institute a groundless prosecution knowingly and willfully.” Dunham v. Roer, 708 N.W.2d 552, 570 n.4 (Minn. Ct. App. 2006). To establish a claim of malicious prosecution, “a plaintiff must prove, at a minimum, that the defendant knew that its actions were wrong.” Hirtzinger v. Pinnacle Airlines, Inc., 2008 WL 835644, at *16 (D. Minn. Mar. 27, 2008).

Kendall could not establish under the facts that the prosecution was malicious.  There was no question that the Code requires applying for a permit before replacing a driveway and there was no permit granted by the City.  The City also gave the Nygards time to comply with the requirement.  When the City commenced with the prosecution (1) the Nygards’ owned the property together, (2) Kendall was copied on every material communication about the dispute, (3) the City did not know who wrote the emails, (4) the City did not know who directed the work in question, and (5) the City did not then know that Kendall lived in Florida. 

Kendall failed to provide any legal authority establishing that a joint property owner is liable under the Code only if she physically performs the work. The City could have reasonably believed that Kendall was an “individual performing the work” if she jointly authorized it with Jay, even if she did not conduct the manual labor.  Nygard v. City of Orono, (8^th Circuit 25-1127, 12/12/25).

Excessive Force: Police Use Of A Pit Maneuver 

Officer Maloy and Officer Jakob were employed by the St. Louis County Police Department. While on patrol they observed a vehicle run a red light and Officer Maloy and Officer Jakob initiated a vehicle stop by employing the emergency lights on their vehicle.  The driver of the vehicle that ran the red light refused to stop.  Maloy and Jakob initiated a pursuit of the vehicle.  The pursuit primarily took place in a residential area where the speed limit was 35 mph.  The driver fleeing the police traveled at speeds that exceeded 90 mph.  During the pursuit Officer Maloy and Jakob deployed a pit stop on the fleeing vehicle which resulted in the fleeing vehicle being driven by Mikel Neil to drive off the roadway and hit a tree near the roadway. Mikel Neil died due to injuries sustained from the vehicular accident.

Clara Cheeks, the mother of Mikel Neil, filed suit alleging that the chase and the use of the pit stop constituted a violation of state law and a violation of §1983 as the maneuver and pursuit were prohibited by department policy.  Cheeks also alleged that Officer Maloy and Jacob left the scene of the crash without rendering aid or calling for medical assistance, and later falsely reported the crash as a single-car accident.  The district court found the officers were entitled to qualified immunity and dismissed the case upon a motion for summary judgment.

It has been stated exhaustively that, “A government official is entitled to qualified immunity unless (1) the facts alleged by the plaintiff establish the violation of a constitutional right; and (2) the right was clearly established at the time of the official’s alleged misconduct.” Murphy v. Schmitt, 143 F.4th 914, 918 (8th Cir. 2025). At the pleading stage, the official “must show that he is entitled to qualified immunity on the face of the complaint.” Id.

The Fourth Amendment prohibits “using excessive force when conducting a seizure.” Ching ex rel. Jordan v. City of Minneapolis, 73 F.4th 617, 620 (8th Cir. 2023).  “To establish a constitutional violation under the Fourth Amendment’s right to be free from excessive force, the test is whether the amount of force used was objectively reasonable under the particular circumstances.” Davenport v. City of Little Rock, 142 F.4th 1036, 1044 (8th Cir. 2025) (8th Cir. 2025) The reasonableness of deadly force turns on “the totality of the circumstances, including [1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officer or others, and [3] whether the suspect is actively fleeing or resisting arrest.” Id.   Weighing these factors, the Supreme Court has already held “a police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.” Scott v. Harris, 550 U.S. 372 (2007).

While in this matter the plaintiff tried to bolster its claim that the force used was unreasonable by relying on the policy adopted St. Louis County limiting police pursuits.  Even though St. Louis County had a policy that limited police pursuits the 8^th Circuit has “repeatedly explained that police department guidelines and policies do not create rights that give rise to a § 1983 action.” Id. at 379. “The Constitution doesn’t rise and fall with the whims of each police department’s policies.” Id. Thus, “just because the driving officer chose to violate department policy doesn’t mean that he acted unreasonably from a constitutional perspective.” Id. at 380.  Cheeks v. Belmar, (8^th Circuit 24-2905, 12/12/25)

Expungement

Dennis Ryno (Ryno) was charged with Class A misdemeanor stalking and Class A misdemeanor harassment in 2013.  Ryno allegedly followed the victim, drove by her residence, sent unwanted text messages and emails, left her unwanted letters, and had other people contact the victim on his behalf.  Ryno allegedly told the Victim “things could get bad for her” if she did not withdraw a complaint she had made to their employer.  Eventually, Ryno pled guilty to misdemeanor harassment charge, and the State dismissed the stalking charge.  The court sentence Ryno to a suspended imposition of sentence for two years with a condition that he would not have any contact with the victim.  Ryno completed his probation in 2016 and no sentence was imposed.  While Ryno completed his probation the court noted a significant number of allegations that there were significant on going issues between Ryno and the Victim.

In 2024 Ryno sought to have this record expunged.  The trial court denied Ryno’s request for an expungement and he appealed the decision.  Ryno claimed in the appeal (1) the trial court erred by not giving Appellant the opportunity to exercise his constitutional and statutory right to cross-examine the victim (“Victim”), (2) the trial court erred by using information from closed records, and (3) the trial court’s findings that Appellant was a threat to public safety, that an expungement was not consistent with the public welfare and that the interests of justice did not warrant the expungement were not supported by substantial evidence. 

The court provided that Missouri courts have long held the right to confrontation only applies in criminal proceedings and not civil proceedings. Krieg v. Director of Revenue, 39 S.W.3d 574, 576 (Mo. App. E.D. 2001). It is not disputed that an expungement hearing is a civil proceeding. Thus, Appellant had no constitutional right to cross-examine Victim in this matter.  The court then provided that Ryno had failed to object to the records that were admitted into the record as evidence.  The court provided that “A party cannot be prejudiced by the admission of allegedly inadmissible evidence if the challenged evidence is merely cumulative to other evidence admitted without objection.” Sherrer v. Boston Scientific Corp., 609 S.W.3d 697, 714 (Mo. banc 2020) Under §610.140, there is a rebuttable presumption that an expungement is warranted after the petitioner pleads, he has met the requirements under §§610.140.5(5) and (6). Id. The burden then shifts to the prosecuting attorney, circuit attorney, or municipal prosecuting attorney to rebut that presumption.  Based on this evidence, the trial court’s findings that the presumption under §610.140 had been rebutted were supported by substantial evidence. The trial court could reasonably find, based on the record presented, that the habits and conduct of the Appellant that led to his initial criminal charges of harassment and stalking against Victim have not changed, which would support a finding that Appellant remains a threat to the public safety of the state, and that expungement of his charges would neither be consistent with the public welfare nor in the interests of justice. The offenses of both harassment and stalking focus on the purpose or intent of the perpetrator to disturb the victim, not just the acts themselves.  Dennis Ryno v. State of Missouri, (SD38734, 12/4/2025).

Negligent Supervision

Michael Gardner (Gardner) was the District Administrator for the Pettis County Ambulance District (PCAD) which is a political subdivision of the State of Missouri and managed by a Board of Directors (Board) (Nehring (Chairman), Clippert (Vice President), Rohrbach (Secretary), Bales (Treasurer)).  Gardner was hired as the District Administrator in 2012. After Gardner was hired the PCAD in 2013 hired Tracy Rank (Rank) as its Human Resource Manager. Rank was the in a romantic relationship with Gardner and lived with Gardner the entire time Gardner served as the District Administrator. Rank directly reported to Gardner and was not supervised by the Board.

On March 24, 2017, Nehring was notified of PCAD bank checks that had been forged with his signature.  Additional investigation resulted in PCAD learning that checks had been made payable to Gardner and Rank.  PCAD contacted the Sedalia Police Department and provided copies of the checks written to and endorsed by Gardner and Tracy Rank which appeared to be forged.

After an investigation was conducted by Sedalia Police Department was conducted Gardner was arrested. He admitted that he forged the checks in question.  PCAD fired Gardner.  Rank was then arrested and charged with felony stealing and forgery.  After Rank was arrested her employment with PCAD was terminated. Eventually Gardner pled guilty to stealing and forgery and Rank’s charges were dismissed.

Rank sued PCAD for negligent supervision of Gardner which resulted in the termination of Rank.  The trial court dismissed the case against PCAD and its board on the grounds that they were entitled to official immunity and then the trial court awarded on summary judgment attorney fees to Rank on a separate claim that she had raised which was that she was entitled to have her legal fees covered for any legal expenses accrued during the course of conduct arising from her employment for PCAD.  She alleged that she had an employment agreement that specifically provided for her attorney fees to be covered.  Both parties appealed the trial court’s judgment. 

Official Immunity:

PCAD asserted that Rank’s case should be dismissed and the defendants were protected by official immunity.  Official immunity “protects public officials sued in their individual capacities from liability for alleged acts of negligence committed during the course of their official duties for the performance of discretionary acts.” State ex rel. Alsup v. Kanatzar, 588 S.W.3d 187, 190 (Mo. banc 2019). “When a public official asserts the affirmative defense of official immunity, she should be afforded such immunity so long as she was acting within the scope of her authority and without malice.” Id. “Official immunity does not apply, and a public official may be held personally liable for the damages the official caused, in two narrow exceptions: (1) when a public official fails to perform a ministerial duty required of the official by law, or (2) when a public official acts in bad faith or with malice.” State ex rel. Love v. Cunningham, 689 S.W.3d 489, 495 (Mo. banc 2024).

Rank argued that the Board failed to perform several ministerial duties required by the bylaws. Specifically, she contends that Board failed to prepare various financial reports, failed to request an annual financial audit review, failed to keep true and accurate records, and failed to obtain a bond, and that these “simple” acts “were not highly discretionary.”

“A ministerial act has long been defined as merely clerical.” Alsup, 588 S.W.3d at 191. “Rubber stamp’ duties of public officials fall into the category of ministerial tasks.” Morales v. Alessi, 679 S.W.3d 467, 472 (Mo. banc 2023).

The duties that the Board allegedly failed to perform were not clerical, ministerial, or “rubber stamp” acts. The Board had discretion on how the acts were to be completed and by whom. It is not enough that the bylaws required certain actions; rather, the issue is whether Board had any discretion in carrying out the acts. Morales, 679 S.W.3d at 472. The Board had discretion on how to compile and review reports, how to obtain and review a financial audit of PCAD, how to keep records, and how to get bonded and in what amount. Because the tasks required by the bylaws to be completed by the Board involved discretion, the ministerial exception of official immunity did not apply. 

Finally, Rank argues that the Board acted with malice.  “A defendant acts with malice when he 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.” While PCAD may have failed to follow its bylaws when it terminated Rank that allegation is insufficient to establish the actions of terminating Rank “were willfully wrongful and in conscious disregard for the rights of Plaintiff.” 

Indemnification:

The court determined that the issue of indemnification could not be determined at this time.  “Neither party’s statement of uncontroverted material facts dispelled a genuine dispute as to whether Rank became involved in the criminal proceeding by reason of her service in her capacity as a PCAD employee, or whether she became involved in the criminal proceeding by reason of her own self-serving conduct (not in service in her capacity as a PCAD employee). Neither party sufficiently addressed the issue in their statement of uncontroverted material facts and therefore the issue remains a question of fact.  Tracy Rank v. Pettis County, (WD87706, 12/9/2025)

Controversial Public Utilities Easement Moot After Utility Abandoned Plans

Evergy was seeking to relocate 8.7 miles of electrical line near Missouri State Highway 13 in Johnson and Lafayette counties.  Timothy Allegri filed a formal complaint with the Missouri Public Service Commission.  Allergri purported to represent 37 other property owners and alleged that Evergy engaged in unlawful acts in trying to relocate the power lines.  The Commission responded to the complaint by advising that it would not act on the complaint because Allegri was not an attorney and could not represent the interest of the other landowners.  The individual landowners filed their own complaints that was consolidated into a single case by the commission.  

The complaints alleged that Evergy had exceeded its authority to in its certificate of convenience and necessity issued by the Commission and that in order to obtain easements from landowners Evergy had also committed fraud.  The property owners requested relief, a hearing on the complaint, and mediation.  As the compliant was pending Evergy initiated condemnation proceedings in circuit court to obtain the easements.  As the condemnation cases proceeded Evergy responded to the complaint pending before the Commission and moved to dismiss on the grounds that the Commission lacked the authority to issue a decision related to the eminent domain proceedings pending in circuit court. The Commission then set the pending complaints for an evidentiary hearing. 

After the evidentiary hearing was set Evergy announced it had changed its plans and no longer sought an easement across the properties that had filed the complaints.  The landowners wanted the Commission to proceed with a hearing because they believed the unlawful and harmful conduct of Evergy needed to addressed.  Evergy requested that the Commission dismiss the complaints because the matter was moot. The Commission determined the matter was moot and the Commission lacked the authority to hear the matter since there was no longer a pending controversy.  Public Counsel on behalf of the landowners appealed the Commission’s decision.

The Western District provided that under Missouri law “A cause of action is moot when the question presented for decision seeks a decision upon some matter which, if the decision was rendered, would not have any practical effect upon any then existing controversy.” WMAC 2013, LLC, 714 S.W.3d at 460 (quoting State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001)). “Mootness is also implicated when circumstances change so as to alter the position of the parties or subject matter so that the controversy ceases, and a decision can grant no relief.” Lamar Co. v. City of Kansas City, 330 S.W.3d 767, 771 (Mo. App. W.D. 2010) 

Since Evergy abandoned its plans to obtain easements from the complainants and dismissed the condemnation proceedings, the complaints became moot. Any decision rendered by the Commission after Evergy abandoned its effort to obtain easements from the complainants would have been a hypothetical one since it would have no practical effect on the parties or their rights. Missouri Office of Public Counsel v. Evergy Missouri West, (WD87860, 11/25/2025)