SUPREME COURT OF MISSOURI
en banc
MICHAEL J. HOLMES,
Appellant,
v.
KENNETH ZELLERS, CATHERINE
HANAWAY, MAYOR CARA SPENCER,
BETTYE BATTLE-TURNER, RICHARD
GRAY, THOMAS IRWIN, ERWIN
SWITZER, FRANCES SLAY, AND CITY
OF ST. LOUIS,
Respondents.
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No. SC101250
Opinion issued June 23, 2026
APPEAL FROM THE CIRCUIT COURT OF CITY OF ST. LOUIS
The Honorable Michael F. Stelzer, Judge In 2016, a federal jury found that two former St. Louis City Metropolitan Police Department ("the department") police officers Shell Sharp and Bobby Garrett ("the officers") violated Michael Holmes' civil rights pursuant to 42 U.S.C. section 1983 and awarded Holmes $2.5 million. Holmes filed the present action seeking the circuit court's declaration as to whether the State of Missouri, or the City of St. Louis, or both had the legal obligation to indemnify the officers or pay the judgment. The circuit court initially ruled the State, through the state legal expense fund ("the fund"), owed the judgment. This Court reversed, holding the State had no duty to pay the judgment pursuant to
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section 105.7261and remanding for adjudication of Holmes' petition for declaratory judgment against the City.
Pertinent to this appeal, Holmes and the City filed competing motions for summary judgment. The circuit court sustained the City's motion and overruled Holmes' motion. Holmes appeals, arguing the City, as the successor-in-interest of the Board of Police Commissioners ("the board"), has a duty to indemnify the officers. Because Holmes did not prove the City waived its sovereign immunity as to his claims for indemnification, the circuit court's judgment is affirmed.2
Factual and Procedural Background
In December 2003, the officers reported observing Holmes sell drugs they allegedly found during a search of his person. Based on the officers' testimony, Holmes was found guilty of federal drug charges in 2006 and sentenced to 25 years in prison. The United States Court of Appeals for the Eighth Circuit affirmed the judgment of conviction. United States v. Holmes, 231 F. App'x 535, 537 (8th Cir. 2007) (per curiam). Later, the department's internal investigation revealed the officers had engaged in repeated misconduct as officers. In 2011, the United States District Court for the Eastern District of Missouri sustained Holmes' motion to vacate, set aside, or correct sentence and ordered a new trial. Holmes v. United States, No. 4:08-CV-1142 CEJ, 2011 WL 4445702, at *6 (E.D. Mo. Sept. 26, 2011). After spending five years in prison, the
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government dismissed the underlying indictment against Holmes, declining to retry him, and he was released.
In 2012, Holmes sued the officers in federal district court in both their personal and professional capacities for violating his civil rights under 42 U.S.C. section 1983 and for the state tort claims of malicious prosecution and false imprisonment. Holmes additionally sued the members of the board on the same grounds. In early 2013, the officers sought defense and indemnification from the board. In turn, the board confirmed that defense would be tendered to the attorney general.3In its response, the board did not address the issue of indemnification.4
The board filed a motion to dismiss Holmes' state tort claims on the basis of sovereign immunity, which the district court sustained. Holmes v. Slay, No. 4:12-CV- 2333 HEA, 2013 WL 5954412, at *3 (E.D. Mo. Nov. 7, 2013). Later, the district court also granted summary judgment to the board regarding Holmes' section 1983 claims. Holmes v. Slay, 99 F. Supp. 3d 978, 988 (E.D. Mo. 2015). The claims against the officers continued to trial.
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In March 2016, the jury returned a verdict in Holmes' favor, awarding him $2.5 million. The district court overruled the officers' motion for judgment as a matter of law and for a new trial, and they appealed. See Holmes v. Slay, No. 4:12CV2333 HEA, 2017 WL 106435 (E.D. Mo. Jan. 11, 2017). The State then intervened, seeking a stay of execution and asking the court to waive the imposition of a supersedeas bond because
"the judgment will definitely be paid, either by the State of Missouri through [the fund] or by the City of St. Louis." The district court subsequently did not require the board or State to post bond. The Eighth Circuit affirmed the judgment. See Holmes v. Slay, 895 F.3d 993, 1004 (8th Cir. 2018).
Meanwhile, in 2015, Holmes filed the current action in the St. Louis City circuit court against the State and the City, seeking a declaration that either the State (through the fund) or the City and the board were obligated to pay the judgment.5Because the board had transferred control of the department to the City in 2013, the City was acting as the board's successor-in-interest at the time of the declaratory judgment action. See section 84.344, RSMo 2016 (repealed March 26, 2025). Holmes claimed the City should pay under theories of indemnification (count I) or respondeat superior (count II), or that the State should pay under theories of judicial estoppel (count III) or indemnification through the fund (count IV). The circuit court ruled the State was obligated to pay the judgment from the fund. Upon review, this Court held section 105.726.3 prohibited the
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fund from paying claims against police officers at the time Holmes brought his action and additionally noted the state is not judicially estopped from disclaiming a duty to indemnify the officers. Holmes v. Steelman, 624 S.W.3d 144, 151 n.8, 156 (Mo. banc 2021). This Court vacated the circuit court's judgment and remanded the case for a determination of the City's liability. Id.
On remand, Holmes and the City filed opposing summary judgment motions.6 Holmes renewed his claim in count I that the City must pay the judgment against the officers under a theory of indemnification, either because the City is the board's successor-in-interest and the board had agreed to indemnify the officers or because the City has an independent duty to indemnify the officers.
In its summary judgment motion, the City argued it was entitled to judgment on Holmes' count I because it cannot inherit liability from the board because the federal district court dismissed the tort claims against the board on the basis of sovereign immunity and granted summary judgment to the board on the remaining claims and Holmes did not appeal those rulings. The City further argued it was entitled to judgment on Holmes' count II. Because Holmes abandoned this claim by not responding to this part of the City's summary judgment motion, the only claim left to be decided by the circuit court, and now this Court, is Holmes' indemnification claim in count I.
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The circuit court sustained the City's motion for summary judgment and overruled Holmes' motion. Holmes appealed. After opinion by the court of appeals, this Court granted transfer pursuant to article V, section 10 of the Missouri Constitution.7
Analysis
Holmes alleges the circuit court erred both in overruling his summary judgment motion and in sustaining the City's reciprocal motion.8"The standard of review of the grant or denial of summary judgment is de novo." State ex rel. Heart of Am. Council v. McKenzie, 484 S.W.3d 320, 324 (Mo. banc 2016) (citing ITT Com. Fin. Corp. v. Mid- Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)). Summary judgment is appropriate when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. ITT Com. Fin. Corp., 854 S.W.2d at 377.
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In seeking summary judgment, Holmes failed to address the applicability of sovereign immunity to his indemnification claims.9Missouri has long applied the doctrine of sovereign immunity, although the doctrine has "been muddied in Missouri case law." Southers v. City of Farmington, 263 S.W.3d 603, 608 (Mo. banc 2008). Sovereign immunity has been correctly described as immunity for governmental entities from tort liability, but it is not exclusive to tort actions. Cf. State ex rel. Alsup v. Kanatzar, 588 S.W.3d 187, 190 (Mo. banc 2019) ("Broadly speaking, sovereign immunity protects governmental entities from tort liability[.]"); Ramirez v. Mo. Prosecuting Att'ys' & Cir. Att'ys' Ret. Sys., 694 S.W.3d 432, 437 (Mo. banc 2024) ("Sovereign immunity applies to non-tort claims[.]").
Moreover, although many cases have characterized sovereign immunity as an affirmative defense, it is actually part of the plaintiff's prima facie case. Newsome v. Kan. City, Mo. Sch. Dist., 520 S.W.3d 769, 776 (Mo. banc 2017). "[I]n the absence of an express statutory exception to sovereign immunity, or a recognized common law exception …, sovereign immunity is the rule and applies to all suits against public
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entities." Ramirez, 694 S.W.3d at 436 (alterations in original) (emphasis added) (internal quotation omitted). In all suits seeking to impose financial liability against public entities, regardless of whether based in tort, a plaintiff may succeed only if he or she can show the entity "waived its sovereign immunity through express statutory consent or a recognized common law exception." Ramirez, 694 S.W.3d at 437.
The City is a public entity. See State ex rel. Bd. of Trs. of City of N. Kan. City Mem'l Hosp. v. Russell, 843 S.W.2d 353, 358 (Mo. banc 1992) (determining that a municipality is a public entity for purposes of sovereign immunity). Therefore, as part of his prima facie claim for indemnification, Holmes was required to show the City waived its sovereign immunity either through express statutory consent or a recognized common law exception. Otherwise, he cannot show he is entitled to judgment as a matter of law. See ITT, 854 S.W.2d at 377.
In his petition, summary judgment motion, and statement of uncontroverted material facts, Holmes did not address the City's sovereign immunity at all. In his memorandum in opposition to the City's summary judgment motion, Holmes addressed sovereign immunity only to acknowledge he was no longer pursuing any respondeat superior claims against the City. Simply put, he did not meet his burden of showing sovereign immunity does not bar his indemnification claim against the City. Holmes, therefore, was not entitled to summary judgment as a matter of law. Holmes asserts that the City waived any arguments about sovereign immunity due to its failure to raise the issue below. The City did not argue sovereign immunity when opposing Holmes' summary judgment motion and raised it in its summary judgment
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motion only as to Holmes' now abandoned respondeat superior claims. Because the City argues here, for the first time, that sovereign immunity protects it from any duty to indemnify the officers, Holmes argues it has waived the issue. Holmes' arguments fail. Sovereign immunity may not be waived by implied consent. Ramirez, 694 S.W.3d at 437-38 ("[Petitioner] asserts this Court should determine the state waived sovereign immunity by implied consent. … Such a holding would be contrary to this Court's precedent recognizing sovereign immunity as the rule, not the exception[.]"). Sovereign immunity may be waived only by express statutory consent or a recognized common law exception. Id. at 437. Therefore, without having proven any express statutory waiver or recognized common law exception as part of his prima facie case, Holmes cannot rely on the City's failure to raise this argument to assert waiver.
The City raised sovereign immunity as an affirmative defense in its answer to Holmes' amended petition. As part of his burden in seeking summary judgment, Holmes was required to establish a prima facie case for declaratory judgment on his indemnification claim, and a waiver of sovereign immunity is part of that prima facie case. See Newsome, 520 S.W.3d at 776. As previously discussed, he did not address sovereign immunity in his summary judgment motion. Having failed to meet his prima facie case in the declaratory judgment action, he failed to show he was entitled to judgment as a matter of law. His summary judgment motion was properly overruled, and the City's motion was properly sustained.
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Conclusion
The circuit court's judgment is affirmed.
KELLY C. BRONIEC, JUDGE
All concur.