Tuesday, June 16, 2009

State ex rel. Henley v. Bickel[1]
Opinion handed down June 16, 2009
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri held that the trial court abused its discretion when it allowed plaintiffs to sue an automobile passenger under joint venture and master-servant theories for negligence arising from a motor vehicle accident and made absolute the passenger’s writ of prohibition to prevent the lawsuit. The majority found that the plaintiffs’ petition did not plead sufficient facts to show the passenger had a “realistic right of control” under either theory.[2] Judges Fischer and Teitelman dissented, arguing that the “normal rules of procedure” provided a remedy and the issuance of the writ circumvented the trial court and appellate processes.[3]

I. Facts & Holding

On November 8, 2006, Donald and Patsy Henley were involved in a motor vehicle accident with James and Connie Graves. The Graves sued both Henleys for negligence. Their petition stated that, at the time of the accident, Mr. Henley was driving, Mrs. Henley was a passenger, the Henleys were husband and wife, and they jointly owned their vehicle. It alleged that the Henleys “were engaged in a joint venture and/or joint journey at the time of the collision,” making both jointly and severally liable for negligence; furthermore, the complaint claimed that Mr. Henley was acting as Mrs. Henley’s agent, making Mrs. Henley “vicariously liable . . . under the doctrine of respondeat superior.”[4]

Mrs. Henley moved to dismiss for failure to state a claim upon which relief can be granted, arguing that the Graves’ pleading failed to allege that she had a “right of control” over the vehicle.[5] The circuit court denied her motion. When she applied for a writ of prohibition, the Supreme Court of Missouri issued a preliminary writ. Upon making the preliminary writ absolute as modified, the court held that, in a petition for negligence based on joint venture and master-servant theories, “[t]he mere allegation of a husband and wife relationship, joint ownership of an automobile, and operation of the automobile by one spouse with the other spouse as a passenger . . . consistent with everyday activities of a marriage is not sufficient to establish a ‘realistic right of control’” under either theory.[6]

II. Legal Background

A. Writs of Prohibition

A writ of prohibition is a written order issued at an appellate court’s discretion “to prevent an abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent the exercise of extra-jurisdictional authority.”[7] Traditionally, if the pleader has not stated and is unable to state a cause of action over which a Missouri court has jurisdiction, the court should grant the writ.[8] Yet for writs based on a motion to dismiss, courts need not engage in a jurisdictional analysis and may issue a writ “‘to prevent unnecessary, inconvenient, and expensive litigation.’”[9]

For a plaintiff’s petition to withstand a motion to dismiss for failure to state a claim upon which relief can be granted, it “must invoke ‘substantive principles of law entitling plaintiff to relief and . . . ultimate facts informing the defendant of that which plaintiff will attempt to establish at trial.’”[10] Neither discovery nor summary judgment could remedy the lack of well-pleaded facts in a state petition. Unlike federal courts, Missouri courts use pleadings, not discovery, to determine the facts underlying a plaintiff’s claim and employ motions to dismiss, not summary judgment, to get rid of baseless claims.[11] Allowing the continuance of a suit that fails to plead sufficient facts “is a waste to the system[,] . . . an unjust expense to the parties that cannot be repaired on appeal[,] . . . [and an] abuse of judicial discretion” for which a writ of prohibition is needed to prevent “irreparable harm and . . . unnecessary litigation and expense.”[12]

B. Joint Venture and Master-Servant Theories

To establish negligence by joint venture, a petition must show that the group members engaged in the venture have 1) an express or implied agreement, 2) a common purpose to carry out, 3) “a community of pecuniary interest in that purpose,” and 4) “an equal right to a voice in the direction of the enterprise, which gives an equal right of control.”[13] The Supreme Court of Missouri noted that state case law restricted the application of joint venture to a husband and wife.[14] Under Stover v. Patrick, neither the fact of marriage nor a trip for a common purpose imputed the negligence of one spouse to the other.[15] The Stover court further held that mere co-ownership of an automobile, without more, did not establish that the passenger-owner had “‘a realistic right of control.’”[16] To establish a realistic right of control, one must make “a practical showing of an actual ability to control the driver, beyond a showing of theoretical right of control over the vehicle via ownership.”[17] The Graves’ petition, which based its argument for joint venture solely on co-ownership of the vehicle and a trip for a family purpose, failed to allege sufficient facts to establish a “realistic right of control” and thus negligence by joint venture.[18]

Similar to joint venture, proving negligence under a principal/agent relationship requires showing the principal had a “‘right to control’ . . . [those actions] necessary to the accomplishment of the final result.”[19] Missouri case law also limited use of master-servant theory against a married couple. According to McAuliffe v. Vondera, if a spouse rides as a passenger, the spouse is generally treated as the driver’s guest with no right to control the driver’s actions.[20] The absence of a right to control prevents imputation of the driver-spouse’s negligence to the passenger-spouse.[21] The Supreme Court of Missouri determined that the petition from the Graves only alleged existence of a marital relationship between Mr. and Mrs. Henley and was insufficient to state a claim for negligence based on master-servant theory.[22]

C. Dissent

In his dissent, Judge Fischer challenged the justifications behind the majority’s issuance of the writ of prohibition.[23] Because the writ allows a party to bypass the usual appellate process, it should only be employed “judiciously and with great restraint.”[24] Judge Fischer agreed that a writ may be needed to prevent judicial overreaching, a court’s lack of jurisdiction, or “‘absolute irreparable harm to a party,’”[25] but did not find any of these conditions to exist. The trial court committed “mere error” in overruling the Henleys’ motion to dismiss, which did not affect its jurisdiction over the case.[26] Furthermore, even if the trial court were to grant or overrule the motion, each side still had a remedy available: the Graves could have appealed the dismissal of their claim against Mrs. Henley to the court of appeals, whereas Mrs. Henley could have moved for summary judgment after discovery.[27]

Judge Fischer also disputed that granting the writ would prevent unnecessary and expensive litigation in this specific case. Practically speaking, both parties would still incur expenses because of Mr. Henley’s trial, and, had the case against Mrs. Henley proceeded, it likely would have been resolved quickly by summary judgment.[28] Though a writ to prevent unnecessary litigation could be appropriate when no remedy through the appellate process existed, Missouri case law did not demonstrate that a judge overruling a motion to dismiss was one of those irreparable situations.[29] Because the trial court’s actions could have been addressed by appeal, Judge Fischer concluded, “The majority’s issuance of the writ of prohibition in this case lacks judicial restraint and serves to circumvent not only our normal appellate process, but our normal process at the trial court level, as well.”[30]

III. Commentary

The majority seemed to reach the correct result, in effect, dismissal of the Graves’ claim against Mrs. Henley while giving leave to amend their petition, because the Graves’ petition did not demonstrate all the elements of negligence under either joint venture or master-servant theory.[31] Not even the dissent challenges the lack of necessary facts in the Graves’ petition. It is not clear, however, that the court should have resorted to a writ of prohibition to get this result.
The majority dismissed the remedy of summary judgment because “it focuses upon whether evidence exists to support well-pleaded facts, not the absence of pleaded facts altogether.” But as Judge Fischer observed, under Missouri Rule of Civil Procedure 74.04, Mrs. Henley could still move for summary judgment and win as a matter of law based on undisputed facts.[32] Although a well-pleaded petition will usually precede summary judgment, it would appear that the lack of sufficient facts does not necessarily preclude summary judgment. Moreover, even if one were to assume that the trial judge’s action constituted an “abuse of judicial discretion” and not just “mere error,” this action could have been rectified through trial or a regular appeal. Judge Fischer seems correct to note that normal trial and appellate processes do, in fact, provide some kind of remedy.

As for whether resorting to these processes would cause irreparable harm through frivolous and costly litigation, that assertion too does not seem as certain as the majority would suggest. Judge Fischer’s argument that both parties would still engage in discovery and a trial for Mr. Henley’s claim – a claim based on the same underlying incident as Mrs. Henley’s – undercuts the possibility of a truly “unjust expense to the parties that cannot be repaired on appeal.”[33]

In the end, it is the majority opinion that creates binding precedent. Whether this opinion will result in more parties using a writ of prohibition to circumvent the normal appellate process, as Judge Fischer warns, remains to be seen. What does seem certain, however, is that plaintiffs’ attorneys in Missouri will draft their petitions more carefully to ensure that the facts alleged are sufficient to support a cause of action.

-Kimberly E. Naguit

[1] 285 S.W.3d 327 (Mo. 2009) (en banc).
[2] Id. at 332-33.
[3] Id. at 335.
[4] Id. at 331.
[5] Id.
[6] Id. at 329.
[7] Id. at 330 (citing State ex rel. Union Elec. Co. v. Dolan, 256 S.W.3d 77, 81 (Mo. 2008) (en banc)); Black’s Law Dictionary (8th ed. 2004) (definitions of “extraordinary writ,” “writ,” and “prohibition”).
[8] Id.
[9] Id. at 330 (quoting State ex rel. Coca-Cola Co. v. Nixon, 249 S.W.3d 855, 860 (Mo. 2008) (en banc)).
[10] Id. at 329-30 (quoting Dolan, 256 S.W.3d at 82).
[11] Id. at 330.
[12] Id.
[13] Id. at 331-32 (citing Manley v. Horton, 414 S.W.2d 254, 260 (Mo. 1967) (en banc) (internal citations omitted)).
[14] Id. at 332.
[15] Id. (quoting 459 S.W.2d 393, 398 (Mo. 1970) (en banc)).
[16] Id. (quoting 459 S.W.2d at 401).
[17] Id. (citing 459 S.W.2d at 399).
[18] Id.
[19] Id. at 332-33 (quoting Bach v. Winfield-Foley Fire Protection Dist., 257 S.W.3d 605, 608, 610 (Mo. 2008) (en banc); Gardner v. Simmons, 370 S.W.2d 359, 362 (Mo. 1963)).
[20] Id. at 333 (quoting McAuliffe v. Vondera, 494 S.W.2d 692, 694 (Mo. App. 1973)).
[21] Id. (quoting McAuliffe, 494 S.W.2d at 694).
[22] Id.
[23] Id. at 333-35 (Fischer, J., dissenting). Judge Teitelman also joined the dissent. Id. at 333.
[24] Id.
[25] Id. at 333 (quoting State ex rel. Dir. of Revenue v. Gaertner, 32 S.W.3d 564, 566 (Mo. 2000) (en banc)).
[26] Id. at 334 (citing J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 253 (Mo. 2009) (en banc)).
[27] Id. (citing Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462, 464 (Mo. 2001) (en banc); Nazeri v. Mo. Valley College, 860 S.W.2d 303, 306 (Mo. 1993) (en banc); Mo. R. Civ. Proc. 74.04)).
[28] Id. at 334-35.
[29] Id. at 335 (noting that the cases cited by the majority to argue for the necessity of the writ to prevent frivolous and costly litigation dealt with issues of venue and class certification, situations with “arguably no adequate remedy by appeal,” but not overruling of a motion to dismiss). See majority opinion at 330.
[30] Id. at 335 (Fischer, J., dissenting).
[31] Henley, 285 S.W.3d at 333.
[32] Id. at 334 (Fischer, J., dissenting).
[33] Henley, 285 S.W.3d at 330.