Pikey v. Bryant, 27570.

Decision Date30 October 2006
Docket NumberNo. 27570.,27570.
Citation203 S.W.3d 817
PartiesCharles S. PIKEY, John S. Pikey, Brent D. Pikey, Charles S. Pikey II, Douglas Riddick, and Margie Riddick, Plaintiffs-Appellants, v. Dr. William C. BRYANT, Defendant-Respondent.
CourtMissouri Court of Appeals

Shawn D. Young, Portageville, MO, for appellants.

Wendell W. Crow, Crow, Reynolds, Shetley & McVey, L.L.P., Kennett, MO, for respondent.

GARY W. LYNCH, Judge.

Charles S. Pikey, John S. Pikey, Brent D. Pikey, Charles S. Pikey II, Douglas Riddick, and Margie Riddick ("Plaintiffs") appeal the dismissal with prejudice of their petition against Dr. William C. Bryant ("Defendant") seeking damages for intentional spoliation of evidence. Plaintiffs concede that this tort has not been previously recognized as a cause of action in Missouri, but urge us to do so. Finding that Plaintiffs' petition fails to state a cause of action for such a tort, even if recognized, we do not reach the recognition issue as urged. The judgment of the trial court is affirmed.

1) Factual and Procedural History

The portions of Plaintiffs' petition germane to the resolution of this case read:

9. On or about May 30, 2003, the Plaintiffs[1] in cause number 03CV45326 filed an action for wrongful death against Defendant Dr. William C. Bryant and said cause is now pending in this court.
. . . .
19. In the course of the wrongful death case pending in this court under cause number 03CV745326, through the course of discovery and deposition testimony, evidence has been produced verifying that a facsimile was transmitted from the Missouri Delta Medical Center Radiology Department containing the CT report of Sheila L. Pikey on January 17, 2003 at 2:52 p.m. to Defendant Dr. William C. Bryant.
20. Defendant Dr. William C. Bryant has testified under oath in deposition testimony that he was in his office during the entire business day on Friday, January 17, 2003 and saw patients throughout the day, but has denied receiving the facsimile transmission of the CT report on the said date of January 17, 2003.
21. In the separate wrongful death action as referenced herein, Defendant Dr. William C. Bryant has intentionally destroyed and/or significantly altered medical records of Sheila L. Pikey, deceased. Said actions of Defendant are indicative of fraud and a desire to suppress the truth.
22. Defendant Dr. William C. Bryant, in the separate wrongful death action as referenced herein, has destroyed and/or significantly altered business records pertaining to January 17, 2003. Said actions of Defendant are indicative of fraud and a desire to suppress the truth.
23. Said acts and conduct of Defendant Dr. William C. Bryant are outrageous and were conducted willfully with improper and wrongful motive and with the willful intent to suppress the truth.
24. The willful, intentional and outrageous acts of Defendant Dr. William C. Bryant as set forth herein are without justification.
25. As a direct and proximate result of Defendant Dr. William C. Bryant's intentional spoliation of evidence as set forth herein, the Plaintiffs have incurred damages.

Defendant filed a motion to dismiss the petition for failure to state a claim for which relief can be granted. The trial court sustained this motion and dismissed the Plaintiffs' petition with prejudice. Plaintiffs appeal, raising one point:

The trial court erred in dismissing the Plaintiffs' Petition for intentional spoliation of evidence because Missouri substantive law can recognize a separate cause of action for intentional spoliation of evidence in that Plaintiffs' Petition and evidence presented were sufficient to make a submissible case for a cause of action based on intentional spoliation of evidence.
2) Defendant's Motion to Dismiss Appeal

We first consider Defendant's request that this appeal be dismissed for Plaintiffs' failure to comply with Rule 84.04, Rule 81.12, and Special Rule 12 of the Special Rules of the Missouri Court of Appeals, Southern District. Specifically, Defendant argues that this Court should dismiss the appeal because of alleged defects in Plaintiffs' point relied on, legal file, statement of facts, and Plaintiffs' failure to provide a civil case information supplement.

"Cases should be heard on the merits if possible, construing the court rules liberally to allow an appeal to proceed." Brown v. Hamid, 856 S.W.2d 51, 53 (Mo. banc 1993). A court will, as a matter of discretion, review a case on its merits where disposition is not hampered by rule violations. Id.

While the briefs and legal file in this case may not be a model of picture-perfect compliance with all of the rules, they are more than adequate to put the court and Defendant on notice as to what legal issues are presented. Any alleged deficiencies do not prevent review on the merits. Defendant's motion to dismiss the appeal is overruled.

3) Standard of Review

In considering the proper standard of review, Plaintiffs assert that the trial court treated Defendant's motion to dismiss the petition as a motion for summary judgment pursuant to Rule 55.27(a),2 because it considered "factual matters outside the pleadings."3 In making this assertion, Plaintiffs rely upon the fact that during oral argument of counsel before the trial court on Defendant's motion to dismiss, Plaintiffs' counsel referred to two exhibits from the underlying wrongful death action and, following the conclusion of the argument, these two exhibits somehow made their way into the court's file in this case.

However, "[b]efore a trial court may treat a motion to dismiss as one for summary judgment, when matters outside the pleadings are presented and not excluded, it must notify the parties that it is going to do so and give the parties an opportunity to present all materials pertinent to the motion for summary judgment." Turner Engineering, Inc. v. 1491155 Weldon Parkway, L.L.C., 40 S.W.3d 406, 408 (Mo.App.2001) (citing Rule 55.27(a); Manzer v. Sanchez, 985 S.W.2d 936, 939 (Mo.App.1999)). Plaintiffs fail to direct us to anything in the record indicating that the trial court gave the parties any notice that it was treating Defendant's motion as a motion for summary judgment. "A trial court's order will constitute a dismissal, and not a summary judgment, where the record contains no evidence that the court notified the parties that it intended to review pleadings and documents as a summary judgment motion, nor that the court considered matters outside the pleadings." Turner Engineering, Inc.,40 S.W.3d at 409 (quoting Manzer, 985 S.W.2d at 939). The judgment entered by the trial court simply states:

[T]he Court takes up Defendant's Motion to Dismiss, having previously heard oral argument of counsel relating to same on November 10, 2005, and having read the pleadings and memoranda submitted by the respective parties, and now being fully advised in the premises, the Court finds the issues in favor or [sic] said Defendant's Motion to Dismiss, and
IT IS HEREBY ORDERED AND ADJUDGED that Defendant's Motion to Dismiss should be and the same is hereby sustained and this cause of action is therefore dismissed with prejudice.

We, like the trial court, treat the Defendant's motion as a motion to dismiss.

"Where, as here, the trial court does not provide reasons for dismissal of the petition, we presume the decision was based on grounds stated in the dismissal motions and will affirm if dismissal was appropriate on any grounds stated therein." Solberg v. Graven, 174 S.W.3d 695, 699 (Mo.App.2005) (quoting Rychnovsky v. Cole, 119 S.W.3d 204, 208 (Mo.App.2003)). In the instant case, Defendant's motion to dismiss alleged, among other things, that the "[p]etition fails to state a cause of action."

A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition. It assumes that all of plaintiff's averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. Sullivan v. Carlisle, 851 S.W.2d 510, 512 (Mo. banc 1993). No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the petition is reviewed 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.

Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo.1993).

4) Current Status of Recognition of the Tort of Intentional First-Party Spoliation of Evidence in Missouri

In this appeal, Plaintiffs contend Missouri should recognize a cause of action for intentional first-party spoliation of evidence.4 "Spoliation" is the destruction, mutilation, alteration, or concealment of evidence. See BLACK'S LAW DICTIONARY 1437 (8th ed.2004). Two Missouri cases, Brown v. Hamid, supra,

and Baugher v. Gates Rubber Company, Inc., 863 S.W.2d 905 (Mo.App.1993), have addressed this issue in dicta, but there is no case directly holding whether or not intentional first-party spoliation of evidence is a recognized cause of action in Missouri.

In Brown, 856 S.W.2d 51, the plaintiff in a medical malpractice case requested to add an additional count of intentional spoliation of medical records against the defendant. Id. at 56. The trial court "denied leave, finding that Missouri does not recognize this cause of action." Id. On appeal, the Missouri Supreme Court found that the facts of the case presented "no basis to recognize a tort of intentional spoliation of evidence." Id. No basis existed because the trial judge specifically found that there was no evidence supporting the contention that the defendant had destroyed the missing medical records. Id.

In Baugher, 863 S.W.2d 905, defendant Gates Rubber Company appealed the dismissal with prejudice of its cross-claim against defendant, The Hartford Insurance Company, for intentional or negligent spoliation of evidence. Id. at 910. The evidence involved in the case included a hose and...

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