McCracken v. Wal-Mart Stores East, Lp

• Decision Date: 27 October 2009
• Docket Number: No. SC90050.,SC90050.
• Parties: J. Michael McCRACKEN, Appellant, v. WAL-MART STORES EAST, LP, Respondent.
• Court: Missouri Supreme Court

298 S.W.3d 473

J. Michael McCRACKEN, Appellant, v. WAL-MART STORES EAST, LP, Respondent.

No. SC90050.

Supreme Court of Missouri, En Banc.

October 27, 2009.

Rehearing Denied December 22, 2009.

Donald E. Woody, Hall, Ansley, Rodgers & Sweeney, P.C., Springfield, MO, for appellant.

James B. James, Kristie S. Crawford, Brown & James, P.C., Springfield, MO, for respondent.

LAURA DENVIR STITH, Judge.

The circuit court dismissed J. Michael McCracken's negligence claim against Wal-Mart Stores East, LP, holding that it lacked subject matter jurisdiction over the claim because Mr. McCracken is a statutory employee of Wal-Mart under section 287.040.1 of the Workers' Compensation Law ("the Act").¹ As a result, the court held, exclusive jurisdiction of his claim is vested in the Labor and Industrial Relations Commission.

This Court reverses and remands. Mr. McCracken's action is a civil case sounding in negligence. As such, the circuit court has subject matter jurisdiction to hear his claim under article V, section 14 of Missouri's constitution. J.C.W. v. Wyciskalla, 275 S.W.3d 249, 253-54 (Mo. banc 2009). To the extent that prior cases state otherwise, they are in error and are overruled.

Because the issue is not a jurisdictional one, the question whether the suit is one that comes within the exception to common law tort liability created by the Act appropriately is raised as an affirmative defense under Rule 55.08 rather than by a motion to dismiss where, as here, the worker has chosen to proceed by filing a tort suit.² Indeed, Missouri courts so required from the first cases addressing the issue in the early 1930s until, as discussed below, the issue erroneously began to be treated as a jurisdictional one in the mid-1980s and thereafter. As is the case with other affirmative defenses, the failure to assert this affirmative defense timely in the answer may result in its waiver.

Here, Wal-Mart failed to assert this affirmative defense, instead raising the issue in its motion to dismiss. But because prior cases had stated that this issue was jurisdictional and so could be raised by a motion to dismiss, the matter will be treated as preserved in this case and in cases now pending. Reaching the merits, this Court determines that the trial court erred in finding that Mr. McCracken is a statutory employee of Wal-Mart. For that reason, the judgment is reversed, and the case is remanded.

I. FACTUAL AND PROCEDURAL BACKGROUND

The pertinent facts are not in dispute. Mr. McCracken is an employee of Interstate Brands Corporation ("IBC"), a company that produces and delivers bread products. Wal-Mart contracted with IBC for the purchase and delivery of bread products manufactured by IBC. Mr. McCracken's duties included delivering racks of bread to certain Wal-Mart stores, maneuvering the racks into the back of the stores and then reloading IBC's delivery vehicle with empty bread racks. After Mr. McCracken moved the bread racks from the truck to the receiving area of a Wal-Mart store, other IBC employees would stack the bread on Wal-Mart's shelves pursuant to IBC's contract. They would return empty bread racks to the receiving area, where Mr. McCracken, in the course of dropping off new bread racks, would reload the racks onto his truck. IBC, not Wal-Mart, instructed Mr. McCracken how to complete his delivery duties.

On November 19, 2004, Mr. McCracken was injured in the receiving area of Wal-Mart's Neosho, Missouri, store when he was struck in the shoulder by an empty bread rack while delivering IBC products. Mr. McCracken filed and settled a workers' compensation claim with IBC based on this injury.

On August 25, 2005, Mr. McCracken filed a personal injury suit against Wal-Mart in the Greene County Circuit Court, alleging that he had incurred the shoulder injury because a Wal-Mart employee negligently pushed the bread rack into his shoulder. Not until March 3, 2008, the day Mr. McCracken's jury trial was set to begin, did Wal-Mart contest the circuit court's jurisdiction to determine Mr. McCracken's claim or assert that Mr. McCracken was a statutory employee under section 287.040.1 whose claim was subject to the Act's exclusivity provisions. Following a hearing, the trial court concluded that Mr. McCracken was a statutory employee of Wal-Mart and, believing this deprived it of subject matter jurisdiction, granted Wal-Mart's motion to dismiss. After decision by the court of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10.

II. STANDARD OF REVIEW

Dismissal for lack of subject matter jurisdiction is appropriate "whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction." Rule 55.27(g)(3). Where "the facts are uncontested, a question as to the subject-matter jurisdiction of a court is purely a question of law, which is reviewed de novo." Missouri Soybean Ass'n v. Missouri Clean Water Comm'n, 102 S.W.3d 10, 22 (Mo. banc 2003). In the workers' compensation context, where "the facts are not in dispute as to the nature of the agreement and the work required by it, the existence or absence of statutory employment is a question of law for the courts to decide." Bass v. Nat'l Super Mkts., 911 S.W.2d 617, 621 (Mo. banc 1995).

Lack of subject matter jurisdiction is not subject to waiver; it can be raised at any time, even on appeal. Groh v. Groh, 910 S.W.2d 747, 749 (Mo.App. 1995). By contrast, if a matter is not jurisdictional but rather is a procedural matter required by statute or rule or an affirmative defense of the sort listed in Rule 55.08, then it generally may be waived if not raised timely. See In re Marriage of Hendrix, 183 S.W.3d 582, 588 (Mo. banc 2006) (personal jurisdiction may be waived); Heins Implement Co. v. Mo. Highway & Transp. Comm'n, 859 S.W.2d 681, 685 (Mo. banc 1993) (res judicata defense is waived where not raised timely, absent implied consent) (overruled on other grounds); In Their Representative Capacity as Trustees for Indian Springs Owners v. Greeves, 277 S.W.3d 793, 798 (Mo.App.2009) (lack of capacity defense waived if not raised timely).

III. WHETHER A CASE IS COMMITTED TO INITIAL DETERMINATION BY THE LABOR & INDUSTRIAL RELATIONS COMMISSION IS NOT A MATTER OF SUBJECT MATTER JURISDICTION

A. Distinction of Subject Matter Jurisdiction and Statutory Authority.

Mr. McCracken contends that the circuit court erred in dismissing his petition for lack of subject matter jurisdiction. He argues that because his personal injury claim is a civil action, the circuit court had subject matter jurisdiction to determine his case.

"The essential bases of a court's authority to adjudicate a controversy are its jurisdiction over the subject matter of the controversy and jurisdiction over the parties." Hendrix, 183 S.W.3d at 587-88. Both parties agree that the circuit court had personal jurisdiction over them. Missouri's constitution is unequivocal in stating that circuit courts "have original jurisdiction over all cases and matters, civil and criminal." Mo. Const. art. V, sec. 14 (emphasis added). As a result, Mr. McCracken is correct that the circuit court had subject matter jurisdiction over his tort claim against Wal-Mart. J.C.W., 275 S.W.3d at 253-54. As this Court recently has had occasion to clarify in J.C.W., Hendrix, and State ex rel. State v. Parkinson, 280 S.W.3d 70, 75-76 (Mo. banc 2009), to the extent that some cases have held that a court has no jurisdiction to determine a matter over which it has subject matter and personal jurisdiction, those cases have confused the concept of a circuit court's jurisdiction—a matter determined under Missouri's constitution—with the separate issue of the circuit court's statutory or common law authority to grant relief in a particular case.

For instance, in J.C.W., Mother argued that the circuit court lacked jurisdiction to grant Father's motion to modify child support because Father was more than $10,000 in arrears and a statute³ deprived a parent with an arrearage exceeding $10,000 of the right to file a motion to modify. 275 S.W.3d at 256. This Court held that because the case before it was a civil case, "the circuit court ha[d] subject matter jurisdiction and, thus, ha[d] the authority to hear th[e] dispute." Id. at 254. It discarded the notion that there was a third type of jurisdiction called "jurisdictional competence" and concluded that analysis of circuit court jurisdiction now is confined "to constitutionally recognized doctrines of personal and subject matter jurisdiction." Id. at 254.

This analysis applies here. Mr. McCracken has filed a civil suit for damages in a circuit court that has personal jurisdiction over him and Wal-Mart. The court below had jurisdiction to hear his claim. Mo. Const. art. V, sec. 14. It erred, therefore, in dismissing his claim for lack of jurisdiction once it determined that Mr. McCracken was a statutory employee of Wal-Mart.

But this does not mean that Mr. McCracken has an undefeatable right to have his claim determined in circuit court just because he chose to file it there in the first instance, without regard to whether he is Wal-Mart's statutory employee or whether his claim is otherwise one that Missouri statutes commit to determination by the Commission. Rather, it means that this issue should be raised as an affirmative defense to the circuit court's statutory authority to proceed with resolving his claim.

This distinction is far more than a semantic one. Subject matter jurisdiction cannot be waived. Gunn v. Dir. of Revenue, 876 S.W.2d 42, 43 (Mo.App.1994). That is why the circuit court permitted Wal-Mart to raise the issue on the eve of trial even though it had not been preserved in Wal-Mart's pleadings. Other, non-jurisdictional defenses that might bar relief—such as claims that plaintiff lacks capacity to sue, that suit has been filed in the wrong venue, that the defendant is a fellow servant, or that a statutory prerequisite to suit has not been met—on...