Gould v. Missouri State Bd. of Registration for the Healing Arts, 61813

• Court: Missouri Court of Appeals
• Writing for the Court: CRANE; CARL R. GAERTNER, P.J., and SIMON
• Citation: Gould v. Missouri State Bd. of Registration for the Healing Arts, 841 S.W.2d 288 (Mo. App. 1992)
• Decision Date: 10 November 1992
• Docket Number: No. 61813,61813
• Parties: Daniel B. GOULD, M.D., Petitioner/Appellant, v. MISSOURI STATE BOARD OF REGISTRATION FOR THE HEALING ARTS, and Deaconess Health Services Corp., and Kemper Coffelt, Esq., and William T. Morgan, Respondents/Respondents.

Page 288

841 S.W.2d 288

Daniel B. GOULD, M.D., Petitioner/Appellant, v. MISSOURI STATE BOARD OF REGISTRATION FOR THE HEALING ARTS and Deaconess Health Services Corp., and Kemper Coffelt, Esq., and William T. Morgan Respondents/Respondents.

No. 61813.

Missouri Court of Appeals,

Eastern District,

Division Four.

Nov. 10, 1992.

Gerald K. Rabushka, Cynthia Ann Frank, Gerald K. Rabushka and Associates, St. Louis, for petitioner/appellant.

William L. Webster, Atty. Gen., Sara L. Trower, Asst. Atty. Gen., Jefferson City, Kemper Coffelt, Coffelt & Coffelt, Clayton, for respondents/respondents.

CRANE, Judge.

Petitioner, Dr. Daniel B. Gould, a Missouri licensed physician, appeals from an order of the trial court dismissing with prejudice Counts I through III of his first amended petition in which he sought equitable relief, a writ of mandamus and a writ of prohibition. The respondents in Counts I, II and III were the Missouri State Board of Registration for the Healing Arts [the Missouri Board], Deaconess Health Services Corp. [Deaconess], and Kemper Coffelt, an attorney. ¹ We find that none of the three counts states a claim for which relief can be granted and affirm the judgment of the trial court.

The facts alleged in the first amended petition indicate that this action arises out of Gould's efforts to become licensed as a physician in the State of Florida and to obtain a favorable endorsement of his qualifications from the Missouri Board. Gould had resigned from Deaconess Hospital. On December 18, 1989 the Missouri Board issued a subpoena to Kemper Coffelt as representative of Deaconess for information about Gould and his resignation from Deaconess Hospital. On May 16, 1990, the Missouri Board issued an endorsement to the Florida Board of Medical Examiners [Florida Board], stating that Gould's license is in good standing and their records did not "indicate any derogatory nature" concerning him. Subsequently, on January 30, 1991, William Morgan, an investigator from the Missouri Board, advised the Florida Board that Gould had been dismissed from Deaconess Hospital and had obstructed the Missouri Board's attempt to investigate.

By way of relief Gould sought an order quashing the subpoena from the Missouri Board to Deaconess and an order requiring the Missouri Board to issue an order stating that Gould is in good standing and has no charges pending. Gould further requested a writ of prohibition against the respondents to prevent them from investigating his resignation from Deaconess and communicating to the Florida Board about any investigation of him. Gould also sought a writ of Mandamus compelling the Missouri Board to issue a favorable endorsement to the Florida Board concerning Gould's status with the Missouri Board.

In its answer, the Missouri Board denied that Gould was entitled to the relief requested under Counts I, II and III, raised the defense that the petition failed to state a claim upon which relief could be granted, and requested the petition be dismissed. The Missouri Board attached an affidavit and exhibits indicating that the subpoena had been withdrawn. The Missouri Board subsequently filed a separate motion to dismiss on the grounds of mootness or for judgment on the pleadings. It incorporated its answer into the motion. After a hearing, the circuit court dismissed Counts I, II and III of the petition with prejudice. Gould appeals from this order.

For his first point Gould asserts that the trial court erred in dismissing Counts I, II and III of his first amended petition. ² His point is stated as follows:

THE TRIAL COURT ERRED IN DISMISSING COUNTS I, II AND III OF DR. GOULD'S PETITION BECAUSE 1) THE PETITION CLEARLY STATES A CAUSE OF ACTION IN MANDAMUS; 2) THE PETITION CLEARLY STATES A CAUSE OF ACTION IN PROHIBITION; 3) THE PETITION CLEARLY STATES A CAUSE OF ACTION PURSUANT TO SECTION 536.100 RSMO WHICH REQUIRES A COURT DECISION IN CIRCUMSTANCES OF UNREASONABLE DELAY OF ADMINISTRATIVE ACTION BY ANY AGENCY AND BECAUSE 4) NO COMPLAINTS OR CHARGES HAVE BEEN FILED WITH THE MISSOURI STATE BOARD SUCH THAT THE ISSUANCE OF A SUBPOENA IS OR WAS WARRANTED, YET AFTER STATING IN LETTERS (LF 11-12) THAT SAID SUBPOENA IS WITHDRAWN, THE STATE BOARD CONTINUES TO REPRESENT TO THE STATE OF FLORIDA AND TO OTHER PARTIES THAT THERE IS AN ONGOING INVESTIGATION OF DR. GOULD, WHICH ACTIONS BY THE STATE BOARD ARE NOT WITHIN ITS JURISDICTION OR AUTHORITY TO ACT.

The contentions advanced in this point are too general to raise an issue on appeal. Rule 84.04(d); Miller v. Ford Motor Co., 732 S.W.2d 564, 565 (Mo.App.1987). These statements do not set forth with sufficient specificity "wherein and why" the trial court erred. In particular they do not say why each dismissed count stated a cause of action. ³ We will nevertheless gratuitously address the arguments made under that point in order to render a decision on the merits.

In reviewing a dismissal for failure to state a claim, we give the pleadings their broadest intendment. Stevenson v. City of St. Louis School Dist., 820 S.W.2d 609, 611 (Mo.App.1991). We treat all facts properly pleaded as true and construe all allegations favorably to plaintiff. Id. We consider any attached exhibits as part of the petition for all purposes. Davis v. Carmichael, 755 S.W.2d 679, 680 (Mo.App.1988). Rule 55.12.

In his first subpoint Gould claims that the petition stated a cause of action in mandamus. Count III of the first amended petition was styled "Petition for a Writ of Mandamus." In that count Gould alleged that he had requested from the Missouri Board an endorsement of his qualifications under 4 CSR 150-2.070 and the Missouri Board had failed and refused to issue a favorable endorsement.

Mandamus is an extraordinary remedy effective to compel performance of a particular act by one who has an unequivocal duty to perform the act. State ex inf. Riederer v. Collins, 799 S.W.2d 644, 646 (Mo.App.1990). A petitioner must show that the right sought to be enforced is clearly established and presently existing. Id. Gould claims that 4 CSR 150-2.070 entitles him to a favorable endorsement from the Missouri Board. That section provides: "The board will supply endorsements of a licensed practitioner's qualifications on proper application forms upon the payment of a proper fee."

Gould did not allege when he applied for an endorsement. He attached to his petition a letter of endorsement from the Missouri Board to the Florida Board dated May 16, 1990, which stated that petitioner was licensed in Missouri until January 31, 1991, that his license was in good standing and there was nothing of a derogatory nature regarding petitioner in its records. This letter satisfies the Missouri Board's regulatory duty to provide an endorsement. Gould argues, however, that the subsequent letter from the Missouri Board's investigator, reporting on the nature of the Missouri Board's investigation, should be withdrawn or nullified because only favorable endorsements are authorized by the regulation. Gould cites no authority for this interpretation and we find no support therefor. The regulation does not address the content of the endorsement and does not prohibit negative information from being communicated. To the contrary, there is statutory authority for the voluntary interstate exchange of information about a licensee, including complaints and investigatory reports. § 620.010.14(7) (Cum.Supp.1991).

Accordingly, this regulation does not provide a clearly established and unequivocal duty on the part of the Missouri Board to issue only favorable endorsements and not to communicate any negative information to other agencies. The trial court did not err in dismissing Count III because it failed to state a claim for which relief could be granted.

In his second subpoint Gould argues that the petition stated a claim in prohibition. Count II of the first amended petition was styled "Petition for Writ of Prohibition." In that count Gould alleged that prior to May 16, 1990, he applied for licensure in the State of Florida, that since that time the Missouri Board has not received or discovered anything of a derogatory nature about him, and that there are no charges or complaints pending before the Missouri Board, but that the Missouri Board continues to represent that an investigation of Gould is ongoing. Gould attached as an exhibit the letter from the Missouri Board's investigator and claimed that as a result of that letter he was denied a license to practice medicine. He sought a writ prohibiting any further investigation into his departure from Deaconess Hospital and any further communications with the Florida...