Duvall v. Lawrence

• Citation: 86 S.W.3d 74
• Decision Date: 16 July 2002
• Docket Number: No. ED 79905.,ED 79905.
• Parties: David DUVALL, Appellant, v. Helen LAWRENCE, et al., Respondents.
• Court: Court of Appeal of Missouri (US)

Page 74

86 S.W.3d 74

David DUVALL, Appellant, v. Helen LAWRENCE, et al., Respondents.

No. ED 79905.

Missouri Court of Appeals, Eastern District, Division Four.

July 16, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David Duvall, Columbia, pro se.

C.E. "Sketch" Rendlen III, Hannibal, MO, for respondent.

Before SHERRI B. SULLIVAN, P.J., LAWRENCE G. CRAHAN, J., and LAWRENCE E. MOONEY, J.

PER CURIAM.

David Duvall ("Plaintiff') appeals the judgment dismissing his petition against Helen Lawrence ("Lawrence"), James Maxey ("Maxey"), Gary Tawney ("Tawney"), and Michael Wilson ("Wilson"). We affirm in part, and reverse and remand in part.¹

In reviewing the court's grant of a motion to dismiss, we accept all properly pleaded facts as true, give them a liberal construction, and draw all reasonable inferences which are fairly deducible from the pleaded facts. Arnold v. American Family Mutual Insurance Co., 987 S.W.2d 537, 539 (Mo.App.1999). Because the court did not state a basis for its dismissal, we presume that dismissal was based on the grounds stated in each motion to dismiss and will affirm if dismissal was appropriate on any ground supported by the motions. Id.

The facts viewed in a light most favorable to the petition are as follows: Plaintiff is the founder and a current member of Society Against Governmental Abuse, a political organization created to seek out governmental abuses and disclose them to the public. In August 2000, Plaintiff filed a civil rights complaint against Wilson, a state prosecutor, and Tawney, Sheriff of Monroe County, in the Federal District Court for the Eastern District of Missouri ("federal lawsuit"). One month later, allegedly in retaliation for Plaintiff's federal lawsuit and his political activities, Wilson met with Lawrence and Maxey and instructed them to obtain an ex parte order of protection against Plaintiff because he was allegedly "stalking" two children, F.J. and J.T.M. (collectively "the children").² At the time Lawrence and Maxey filed their petitions for orders of protection, Wilson knew that they did not have custody of the children and that the allegations against Plaintiff were materially false.

After Lawrence and Maxey filed their petitions, Plaintiff delivered a subpoena to Tawney to serve on Lawrence for the purpose of obtaining Lawrence's deposition on September 26, 2000 in a separate case filed in Randolph County ("Randolph County lawsuit"). Allegedly in retaliation for Plaintiffs federal lawsuit, Tawney refused to provide service or engaged in activities to prevent service of process upon Lawrence. Lawrence did not attend the September 26 deposition, and bragged to three different individuals that the sheriffs department did not want to serve her with Plaintiff's subpoena. Plaintiff spent over $40 attempting to depose Lawrence.

Two days later, the circuit judge presiding over the ex parte orders held an initial hearing on the orders. Plaintiff could not attend because the hearing conflicted with "other civil litigation," wherein Plaintiff was seeking a contempt citation against Lawrence for failing to appear for a deposition. Lawrence and Maxey subsequently dismissed their petitions for orders of protection. Plaintiff incurred over $420 in expenses because of the ex parte litigation.

Some time between September 28 and October 18, 2000, Tawney and Wilson knowingly allowed Lawrence to drive a stolen car, granting her what Plaintiff describes as "de facto carte blanche immunity to any crimes committed in Monroe County." On October 18, 2000, Plaintiff was on the ground floor of the Monroe County courthouse. Lawrence and the children were on the upper floor. At this time, Lawrence had custody or supervision over the children. Upon seeing Plaintiff, Lawrence directed the children to spit on Plaintiff or failed to restrain the children from spitting on Plaintiff. Lawrence then congratulated the children for their conduct, even though in spitting on Plaintiff, Lawrence and the children believed they were exposing him to various diseases.

On April 3, 2001, while Plaintiff was in the lobby of the post office, Maxey and Lawrence entered the lobby and physically battered him. Maxey and Lawrence then left the post office, but Maxey remained outside, stating in a loud voice that he was going to kill Plaintiff as soon as he exited the building. Because Plaintiff knew that Maxey illegally possessed hand guns and assault rifles and had shot at people in the past, Plaintiff was afraid to leave the post office and remained there. Wilson did not arrest or charge Maxey and Lawrence for their conduct.

Plaintiff filed his amended petition in this action on May 10, 2001. He alleged that the conduct of Maxey, Lawrence, Wilson, and Tawney constituted malicious prosecution, abuse of legal process, a violation of civil rights pursuant to 42 U.S.C. Section 1983 ("Section 1983"), assault, battery, and false imprisonment. All defendants separately moved to dismiss Plaintiff's petition. The court granted their motions. This appeal follows.

I. Motions to Dismiss of Lawrence and Maxey

In his first point, Plaintiff argues that the court erred in granting Lawrence's motion to dismiss Count IV of his amended petition on the ground that the complaint was frivolous and groundless because Plaintiff properly stated a cause of action for battery. Initially, we note that Lawrence's ground for dismissal does not clearly allege that Plaintiff failed to state a cause of action.³ However, because Lawrence is a pro se litigant, we will hold her to a less rigorous standard and treat this ground as an allegation that Plaintiff failed to state a claim upon which relief can be granted. Cf. Moore v. Swisher Mower & Machine Co., Inc., 49 S.W.3d 731, 736-37 (Mo.App.2001) (addressing pro se appellant's point relied on despite technical deficiency and general rule that pro se litigants must adhere to the same procedural requirements as lawyers because court was able to ascertain the issues and the arguments); Kennedy v. Missouri Attorney General, 922 S.W.2d 68, 70 (Mo.App. 1996) (stating that in comparison to attorney prepared pleadings, a pro se petition is held to a less rigorous standard).

When reviewing a dismissal for failure to state a claim, we must determine whether the facts pleaded and reasonable inferences to be drawn from the allegations, as viewed in the light most favorable to the plaintiff, demonstrate any basis for relief. Watley v. Missouri Board of Probation and Parole, 863 S.W.2d 337, 338 (Mo.App.1992). A pro se petition is held to a less rigorous standard and is subject to dismissal if it is patently and irreparably frivolous or malicious on its face so that, as pleaded, the plaintiff could prove no set of facts entitling him to relief. Id. "[I]n determining whether a pro se petition states a cause of action, the petition must be viewed favorably to the pleader, given the benefit of every reasonable intendment, and indulged with liberality." Id. The petition must state allegations of fact in support of each essential element of the cause pleaded. Kennedy, 922 S.W.2d at 70. If the petition consists of only conclusions and does not contain ultimate facts or any allegations from which to infer those facts, a motion to dismiss is properly granted. Id.

Liberally construing Plaintiffs petition, it appears Plaintiff is claiming that Lawrence is liable for the children's tortious acts of spitting on Plaintiff. In addition to other situations not relevant to this case, a parent may be held liable for the acts of her children:

... where the parent's negligence consists entirely of [her] failure reasonably to restrain the child from vicious conduct imperilling [sic] others, when the parent has knowledge of the child's propensity towards such conduct; and ... where the parent participates in the child's tortious conduct by consenting to it or by ratifying it later and accepting the fruits.

National Dairy Products Corp. v. Freschi, 393 S.W.2d 48, 54 (Mo.App.1965). As to tortious conduct, a battery consists of intended, offensive, bodily contact with another. Geiger v. Bowersox, 974 S.W.2d 513, 516 (Mo.App.1998). Intentional spitting is considered offensive physical contact. See RESTATEMENT (SECOND) OF TORTS, Section 19 (1965) (providing spitting in the face as an example of offensive contact); cf. State v. Mack, 12 S.W.3d 349, 354 (Mo.App.2000) (finding that an inmate's act of spitting on a guard constitutes offensive or provocative physical contact in violation of Section 565.070 RSMo 2000).⁴

In his petition, Plaintiff initially alleges that on the day of the incident, Lawrence agreed to and had custody, control, and/or supervision over the children.⁵ Acceptance of the custody and control of a minor child creates a relationship sufficient to support a duty of care. A.R.H. v. W.H.S., 876 S.W.2d 687, 691 (Mo.App. 1994). He further alleges that Lawrence knowingly and deliberately directed the children to spit on Plaintiff. In the alternative, Plaintiff alleges that Lawrence negligently allowed the children to engage in the misconduct even though she knew that the children had a propensity to engage in this conduct but that she failed to restrain them.

To support his allegations, Plaintiff alleges that while Lawrence was with the children, the children called his name, he looked up, and the children spat on him. Afterwards, he heard Lawrence laugh and congratulate the children for their conduct. We find that Plaintiff's allegations of liability based on the theory of Lawrence's failure to restrain the children despite knowledge of their propensity towards tortious conduct are merely conclusory statements.⁶ However, Plaintiff has sufficiently stated a cause of action based on a ratification theory. Therefore, Plaintiffs first point is granted.

In his second point, Plaintiff contends that the trial court erred in sustaining Lawrence's and Maxey's...