Dibrill v. Normandy Assocs., Inc.

• Decision Date: 30 October 2012
• Docket Number: No. ED 97467.,ED 97467.
• Citation: 383 S.W.3d 77
• Parties: Trina DIBRILL, A Disabled Person, By Her Next Friend Annginette Wheeler, Appellant, v. NORMANDY ASSOCIATES, INC. d/b/a Normandy Nursing Center, Kerry Kaufmann, Clara Mayes and Santonio McCoy, Respondents.
• Court: Missouri Court of Appeals

383 S.W.3d 77

Trina DIBRILL, A Disabled Person, By Her Next Friend Annginette Wheeler, Appellant,

v.NORMANDY ASSOCIATES, INC. d/b/a Normandy Nursing Center, Kerry Kaufmann, Clara Mayes and Santonio McCoy, Respondents.

No. ED 97467.

Missouri Court of Appeals,

Eastern District,

Division Four.

Oct. 30, 2012.

James C. Robinson St. Louis, MO, for appellant.

Teresa D. Bartosiak, St. Louis, MO, for respondents.

PATRICIA L. COHEN, Judge.

Introduction

Trina Dibrill (Plaintiff) by her next friend and mother, Annginette Wheeler, appeals the trial court judgment in favor of Normandy Nursing Center, Kerry Kaufmann, and Clara Mayes (Defendants). Plaintiff claims the trial court: (1) erred by dismissing with prejudice her petition on the grounds of failure to state a claim upon which relief can be granted; and (2) abused its discretion by denying her motion for leave to amend the petition. We affirm in part and reverse in part.

Factual and Procedural Background

On February 23, 2010, Plaintiff filed a nine-count petition against Defendants and Santonio McCoy, a former housekeeper at Normandy, seeking damages for injuries caused by McCoy's alleged rape of Plaintiff. At the time of the alleged rape, Plaintiff was a resident of Normandy Nursing Center (Normandy), defendant Kaufmann owned Normandy, and defendant Mayes was Normandy's director of nursing. In her petition, Plaintiff asserted claims of negligence, assault and battery, negligent hiring and retention, negligent supervision, false imprisonment, respondeat superior, and intentional and negligent infliction of emotional distress. Defendants filed a motion for a more definite statement and a motion to strike Plaintiff's claims for punitive damages. Before the court could rule on Defendants' motion, Plaintiff filed a first amended petition. On May 25, 2010, the trial court granted Defendants' motion for more definite statement and struck Plaintiff's claims for punitive damages.

Plaintiff filed a second amended petition on June 4, 2010 alleging actions for: negligence against Defendants and McCoy; assault and battery against McCoy; negligent hiring and retention against Defendants; negligent supervision against Defendants; false imprisonment against McCoy; respondeat superior against Defendants; and intentional infliction of emotional distress against McCoy, Kaufmann, and Mayes. In response, Defendants filed a motion to dismiss Plaintiff's causes of action for negligent hiring and retention, respondeat superior, and intentional infliction of emotion distress. Defendants also filed a motion for more definite statement and motions to strike Plaintiff's claims for attorneys' fees and punitive damages. On July 22, 2010, the trial court: dismissed Plaintiff's claims for negligent hiring, negligent supervision, respondeat superior, and intentional and negligent infliction of emotion distress; struck Plaintiff's claims for punitive damages and attorneys' fees; and granted Defendants' motion for more definite statement.

On August 11, 2010, Plaintiff filed a third amended petition, to which Defendants responded with additional motions to dismiss and motions for more definite statement. On November 30, 2010, the trial court dismissed Plaintiff's third amended petition without prejudice for failure to file a healthcare affidavit.

On December 22, 2010, Plaintiff re-filed her petition stating claims for: negligence per se against Normandy, Kaufmann, and Mayes (Counts I, II, III); breach of fiduciary duty against Kaufmann and Mayes (Count IV); battery against McCoy (Count V); assault against McCoy (Count VI); negligent hiring against Defendants (Count VII); false imprisonment against McCoy (Count VIII); negligent supervision against Defendants (Count IX); respondeat superior against Defendants (Count X); and aggravating circumstances/punitive damages against Defendants and McCoy (Count XI).¹ Defendants filed a motion to dismiss all counts directed against them, and the trial court heard arguments on Defendants' motion on March 18, 2011 and April 28, 2011.

On May 2, 2011, the trial court issued an order dismissing without prejudice Plaintiff's Counts I through IV, VII, and IX. With respect to Plaintiff's Count X for respondeat superior, the trial court ordered Plaintiff to file a first amended petition “in which she makes the nature of her allegations more definite and provides sufficient definiteness or particularity as to each defendant to support her theory of respondeat superior.” However, the trial court dismissed with prejudice “any claim for respondeat superior based upon the conduct of Defendant Santonio McCoy....” The trial court also dismissed with prejudice Plaintiff's Count XI for aggravating circumstances/punitive damages. Plaintiff filed a motion for leave to amend and a proposed first amended petition, as well as a motion to reconsider the trial court's May 2, 2011 order. On June 15, 2011, the trial court denied Plaintiff's motion for leave to amend and motion to reconsider.

Plaintiff filed a motion to amend and/or alter the trial court's judgment of June 15, 2011, and the trial court heard arguments on the motion on September 16, 2011. While Plaintiff's motion to amend and/or alter the judgment was pending, Plaintiff filed a notice of appeal. After this court issued an order to show cause, Plaintiff filed with the trial court a motion to certify the entire court file as a final order/judgment pursuant to Rule 74. After hearing arguments and receiving each party's proposed orders, the trial court issued an order on January 13, 2012 stating:

By virtue of the Court's two rulings on May 2, 2011 and June 15, 2011 combined, the Court is now treating all Counts against Normandy Nursing Center, Kerry Kaufman [sic], and Clara Mayes as dismissed with prejudice, and is now certifying in this Order that the dismissals of all Counts against Normandy Nursing Center, Kerry Kaufman [sic], and Clara Mayes are with prejudice under Rule 74.01(a) and (b) of the Missouri Rules of Civil Procedure, and there is no just reason for delay.

Plaintiff appeals.

Standard of Review

Rule 55.27(a)(6) allows a defendant to file a motion to dismiss a plaintiff's petition for failure to state a claim upon which relief can be granted. Rule 55.27(a)(6); Capitol Group, Inc. v. Collier, 365 S.W.3d 644, 647 (Mo.App. E.D.2012). “A motion to dismiss for failure to state a claim on which relief can be granted is solely a test of the adequacy of the petition.” Bromwell v. Nixon, 361 S.W.3d 393, 398 (Mo. banc 2012). When considering whether a petition fails to state a claim upon which relief can be granted, we review the petition “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.” City of Lake Saint Louis v. City of O'Fallon, 324 S.W.3d 756, 759 (Mo. banc 2010) (quotation omitted). In so doing, we accept as true all properly pleaded facts, giving the pleadings their broadest intendment, and construe all allegations favorably to the pleader. Id. Our review of a dismissal for failure to state a claim is de novo. Miles ex rel. Miles v. Rich, 347 S.W.3d 477, 481 (Mo.App. E.D.2011).

We review the denial of leave to amend a petition for an abuse of discretion, and we will not disturb the trial court's decision absent a showing that the trial court palpably and obviously abused its discretion. Zubres Radiology v. Providers Ins. Consultants, 276 S.W.3d 335, 341–42 (Mo.App. W.D.2009) (quotation omitted). A ruling constitutes an abuse of discretion when “it is clearly against the logic of the circumstances and is so arbitraryand unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Fleddermann v. Camden County, 294 S.W.3d 121, 126 (Mo.App. S.D.2009) (quotation omitted).

Discussion

1. Motion to Dismiss

In her first point on appeal, Plaintiff claims the trial court erred in dismissing with prejudice each count of her petition. More specifically, Plaintiff contends that her petition stated claims upon which relief can be granted and was sufficient to withstand a motion to dismiss.²

A. Negligence Per Se Claims

In her petition, Plaintiff alleged three counts of negligence per se—Count I against Normandy, Count II against Kaufmann, and Count III against Mayes. Plaintiff based her negligence per se claim against Defendant Normandy on violations of state regulations issued by the Missouri Department of Health and Senior Services pursuant to its authority under the Missouri Omnibus Nursing Home Act (ONHA). Mo.Rev.Stat. § 198.079.³ Plaintiff based her negligence per se claims against Defendants Kaufmann and Mayes on violations of federal and state nursing home regulations.

In their motion to dismiss and in their brief, Defendants argued that Plaintiff failed to state claims for negligence per se because she “failed to allege that: 1) she is within the class of persons intended to be protected by the regulations she cites, and 2) the injury alleged is of the nature that the regulations she cites were designed to prevent.” Where, as here, the trial court did not provide reasons for its dismissal of the petition, we presume the dismissal was based on at least one of the grounds stated in the motion to dismiss, and we will affirm if dismissal was appropriate on any grounds stated therein. Fenlon v. Union Elec. Co., 266 S.W.3d 852, 854 (Mo.App. E.D.2008).

“[T]he violation of a statute, which is shown to be the proximate cause of the injury, is negligence per se.” Imperial Premium Fin., Inc. v. Northland Ins. Co., 861 S.W.2d 596, 599 (Mo.App. W.D.1993). Negligence per se arises when the legislature pronounces in a statute what the conduct of a reasonable person must be and the court adopts the statutory standard of care to define the standard of conduct of a reasonable person. Burns v. Frontier II Props. Ltd. P'ship, 106 S.W.3d 1, 3 (Mo.App. E.D.2003). “When a case based on...