Kennedy v. Missouri Atty. Gen., WD

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: ULRICH
• Citation: 922 S.W.2d 68
• Parties: Joseph KENNEDY, Appellant, v. MISSOURI ATTORNEY GENERAL, Respondent. 52126.
• Docket Number: No. WD,WD
• Decision Date: 21 May 1996

Page 68

922 S.W.2d 68 Joseph KENNEDY, Appellant,
v.
MISSOURI ATTORNEY GENERAL, Respondent. No. WD 52126. Missouri Court of Appeals,
Western District. May 21, 1996.

Page 69

Joseph Kennedy, Jefferson City, pro se.

Jeremiah W. (Jay) Nixon, Attorney General, Frank A. Jung, Assistant Attorney General, Jefferson City, for respondent.

Before LAURA DENVIR STITH, P.J., and ULRICH and SMART, JJ.

ULRICH, Judge.

Joseph Kennedy appeals from the dismissal of his petition for declaratory judgment. Mr. Kennedy is currently serving a life sentence without the possibility of parole for fifty years for capital murder. He filed a pro se petition for declaratory judgment in the Circuit Court of Cole County, Missouri, naming the Missouri Attorney General as the defendant. The petition sought a declaration that section 558.019.4(1), RSMo 1994 violated

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his right to equal protection of the law. The state moved to dismiss the petition for failure to state a claim for relief, Rule 55.27(a)(6), and for judgment on the pleadings, Rule 55.27(b). The trial court dismissed the petition for failing to state a cause of action. The judgment of the trial court is affirmed.

When reviewing the sufficiency of a petition to state a claim for declaratory relief, the reviewing appellate court shall liberally construe the pleadings in favor of the plaintiff and accord averments in the petition their reasonable and fair intendment. Crain v. Missouri State Employees' Retirement Sys., 613 S.W.2d 912, 915 (Mo.App.1981). All facts properly pleaded are taken as true, and the plaintiff is accorded all favorable inferences which can be deduced from the petition. Edward D. Gevers Heating & Air Conditioning Co. v. R. Webbe Corp., 885 S.W.2d 771, 773 (Mo.App.1994). If the allegations in the petition invoke principles of substantive law which, if proved, entitles the pleader to a declaration of rights or status, the pleading is sufficient and must not be dismissed. Lovelace v. Long John Silver's, Inc., 841 S.W.2d 682, 684 (Mo.App.1992). The petition must contain allegations of fact in support of each essential element of the cause pleaded. Gevers, 885 S.W.2d at 773. "If the petition offers only conclusions and does not contain the ultimate facts or any allegations from which to infer those facts, a motion to dismiss is properly granted." Id. "In comparison to attorney prepared pleadings, a pro se petition is held to a less rigorous standard and 'is subject to summary 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'." Watley v. Missouri Bd. of Probation and Parole, 863 S.W.2d 337, 338...