State ex rel. Henley v. Bickel

• Decision Date: 16 June 2009
• Docket Number: No. SC 89614.,SC 89614.
• Citation: 285 S.W.3d 327
• Parties: STATE ex rel. Pansy HENLEY, Relator, v. The Honorable James R. BICKEL, Respondent.
• Court: Missouri Supreme Court

285 S.W.3d 327

STATE ex rel. Pansy HENLEY, Relator, v. The Honorable James R. BICKEL, Respondent.

No. SC 89614.

Supreme Court of Missouri, En Banc.

June 16, 2009.

John D. Hammons, Jr., Paula S. Green, Ellis, Ellis, Hammons & Johnson, Springfield, MO, for Relator.

Michelle B. O'Neal, Patrick M. Martucci, Hershewe Law Firm, PC, Joplin, MO, for Respondent.

WILLIAM RAY PRICE, JR., Judge.

I. Introduction

James and Connie Graves (collectively "Plaintiffs") filed a negligence lawsuit against Donald Henley ("Donald") and Pansy Henley ("Pansy") arising out of an automobile accident. Donald was driving, and Pansy was a passenger. The claim against Pansy is based upon the theory of joint venture or respondeat superior. Pansy filed a motion to dismiss for failure to state a claim upon which relief can be granted, but the circuit court overruled the motion.

Pansy seeks prohibition pursuant to Mo. Const. art. V, sec. 4. This Court issued a preliminary writ, which is now made absolute as modified. The 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 for a purpose consistent with everyday activities of a marriage is not sufficient to establish a "realistic right of control" by the passenger spouse for liability under either joint venture or master servant theories.

II.

A. Standard of Review

A motion to dismiss for failure to state a cause of action upon which relief can be granted attacks the plaintiff's pleadings and the following standard of review applies:

A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition. It assumes that all of plaintiff's averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.

Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462, 464 (Mo. banc 2001); Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). In order to withstand the motion, the petition 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." Dolan, 256 S.W.3d at 82 (citations omitted).

B. Writ of Prohibition

Prohibition is a discretionary writ that may be issued to prevent an abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent the exercise of extra-jurisdictional authority. State ex rel. Union Elec. Co. v. Dolan, 256 S.W.3d 77, 81 (Mo. banc 2008). In Dolan, the Court held that "[i]n the context of a motion to dismiss for failure to state a cause of action, it has long been held that `where a petition reveals that the pleader has not stated and cannot state a cause of action of which the circuit court would have jurisdiction, then prohibition will lie.'" Id. at 81 (citation omitted). Of particular relevance here is this Court's statement that "prohibition will lie if plaintiff's petition `does not state a viable theory of recovery, and relator was entitled to be dismissed from the suit as a matter of law.'" Id. at 81 (quoting State ex rel. Barthelette v. Sanders, 756 S.W.2d 536, 539 (Mo. banc 1988)). See also Adkisson v. Dir. of Revenue, 891 S.W.2d 131, 132 (Mo. banc 1995) (citing Commercial Bank of St. Louis County v. James, 658 S.W.2d 17, 21 (Mo. banc 1983)).

Traditionally, the Court has discussed writs of prohibition in jurisdictional language. This Court's recent decision of J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), attempts to refine the concepts of jurisdiction and authority in a practical way. However, use of a writ in a motion to dismiss context does not depend upon jurisdictional analysis. "This Court has repeatedly held that `prohibition may be appropriate to prevent unnecessary, inconvenient, and expensive litigation.'" State ex rel. Coca-Cola Co. v. Nixon, 249 S.W.3d 855, 860 (Mo. banc 2008) (quoting State ex rel. Union Planters Bank, N.A. v. Kendrick, 142 S.W.3d 729, 735 (Mo. banc 2004)); State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 857 (Mo. banc 2001); see also State ex rel. Am. Family Mut. Ins. Co. v. Clark, 106 S.W.3d 483, 486 (Mo. banc 2003). If a party cannot state facts sufficient to justify court action or relief, it is fundamentally unjust to force another to suffer the considerable expense and inconvenience of litigation. It is also a waste of judicial resources and taxpayer money.

Discovery provides no remedy as there is nothing pleaded upon which to focus any search for evidence. Summary judgment likewise provides no remedy because it focuses upon whether evidence exists to support well-pleaded facts, not the absence of pleaded facts altogether.

Where the federal courts now use discovery to identify the facts upon which the plaintiff's claim rests, such has always been the role of pleadings in Missouri. Finally, where the federal courts rely on summary judgment procedures to dispose of baseless claims, such continues to be the role of motions to dismiss in Missouri.

ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp. 854 S.W.2d 371, 380 (Mo. banc 1993) (emphasis in original) (internal citations omitted).

In sum, to allow a suit to proceed, without meeting the most minimal level of fact pleading, is a waste to the system and an unjust expense to the parties that cannot be repaired on appeal and is subject to a writ for abuse of judicial discretion to avoid irreparable harm and prevent unnecessary litigation and expense.

III. Facts

The underlying facts relevant to this Court's determination are found in the language of Plaintiffs' amended petition, which states, in part:

4. At all relevant times Defendant Donald E. Henley and Pansy Henley were husband and wife and joint owners of a 2006 Toyota Camry ...

5. Defendant Donald E. Henley and Pansy Henley were engaged in a joint venture and/or joint journey at the time of the collision which gives rise to this cause of action such that both defendants are jointly and severally responsible for the negligence of defendant Donald E. Henley. Defendant Pansy Henley was a passenger in the 2006 Toyota Canny at the time of the collision and, as such, was entitled to right of control over the operation of the vehicle.

6. At all times relevant, Defendant Donald E. Henley was the agent of Defendant Pansy Henley and was acting within the course and scope of said agency so as to make Defendant Pansy Henley vicariously liable for Defendant Donald E. Henley's negligence under the doctrine of respondeat superior.

...

8. On or about November 8, 2006, at approximately 6:10 p.m., Plaintiff James L. Graves was operating a 1998 Honda Motorcycle westbound on U.S. Highway 160 approximately four miles west of Lockwood, Missouri, in Dade County.

9. At that time, Plaintiff Connie Graves was a passenger riding on the motorcycle operated by her husband, Plaintiff James Graves.

10. At the same time, Defendant Donald E. Henley was operating a 2006 Toyota Canny southbound on Route D in Dade County. Defendant Pansy Henley was a passenger in the Toyota Canny being driven by Defendant Donald E. Henley.

11. On the above mentioned date and time, Defendant Donald E. Henley and Pansy Henley were moving personal belongings from their home in Jerico Springs to a new home in Joplin.

12. On the above mentioned date and time, Defendant Donald E. Henley approached a stop sign at which point Route D intersects with U.S. Highway 160.

13. As Plaintiffs approached the intersection of Route D and U.S. Highway 160, Defendant Donald E. Henley violated the stop sign controlling traffic from his direction, and pulled his vehicle into the intersection directly into the path of Plaintiffs' motorcycle.

14. A collision ensued between Plaintiffs' motorcycle and the Henley vehicle, resulting in the personal injuries and damages set forth below.

In her motion to dismiss for failure to state a claim upon which relief can be granted, Pansy argued that Plaintiffs' amended petition failed to allege an element necessary to plead joint venture or master servant liability under Missouri law; that Pansy had a "right of control" over the vehicle. The trial court overruled the motion. Pansy now seeks a writ of prohibition to prevent Plaintiffs from proceeding with the lawsuit.

IV. Analysis

A. Joint Venture

Generally, to state a claim against defendants as a joint venture, plaintiff's petition must allege the following:

(1) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose, among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control.

Manley v. Horton, 414 S.W.2d 254, 260 (Mo. banc 1967) (citing RESTATEMENT (SECOND) OF TORTS sec. 491); See also Mitchem v. Gabbert, 31 S.W.3d 538, 541 (Mo.App.2000) (citing McSorley v. Hauck, 883 S.W.2d 562, 566 (Mo.App.1994)).

However, a more restrictive approach is applied in cases involving a husband and wife. In the context of an automobile accident involving a vehicle that is jointly owned by husband and wife, this Court has held that the "[m]ere existence of the husband and wife relationship does not cause negligence of one spouse to be imputed to the other." Stover v. Patrick, 459 S.W.2d 393, 398 (Mo. banc 1970). "Trips for some family purpose or mutual pleasure have been held not to result in imputing negligence of the husband-driver to his passenger-wife." Id. Furthermore, this Court held that:

[C]o-ownership of an automobile does not give a realistic right of...