Smith v. Bowersox

• Decision Date: 30 July 2010
• Docket Number: No. SD 30056.,SD 30056.
• Citation: 330 S.W.3d 103
• Parties: Jonathan D. SMITH, Appellant,v.Michael BOWERSOX, Respondent.
• Court: Missouri Court of Appeals

330 S.W.3d 103

Jonathan D. SMITH, Appellant,

v.Michael BOWERSOX, Respondent.

No. SD 30056.

Missouri Court of Appeals, Southern District, Division Two.

July 30, 2010.Application for Transfer Denied

Sept. 7, 2010.

Jonathan D. Smith, Jefferson City, pro se.Chris Koster, Atty. Gen., Arax Ruth Corn, Jefferson City, for Respondent.WILLIAM W. FRANCIS, JR., Judge.

Jonathan D. Smith (“Appellant”) filed a petition in the circuit court alleging numerous allegations against Michael Bowersox (“Respondent”). The caption of the petition purports to assert claims for “negligence, criminal negligence, reckless driving, respondeat superior, tampering with mail, conspiracy & forgery [sic].” Respondent filed a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 55.27(a). ¹ The trial court sustained the motion and dismissed the petition with prejudice. This appeal followed. We affirm the trial court's judgment. ²

Factual and Procedural History

Appellant filed his petition in the Texas County Circuit Court on January 30, 2009. Appellant alleged Respondent was the superintendent at South Central Correctional Center, and asserted various allegations in the 22–page petition, with 370 pages of attachments. On March 30, 2009, Respondent filed his motion to dismiss Appellant's petition for failure to state a claim upon which relief can be granted. The trial court sustained Respondent's motion on June 2, 2009.

Standard of Review

We review de novo the trial court's decision to dismiss a petition for failure to state a claim because the procedure does not involve the resolution of a factual dispute but “is solely a test of the adequacy of the petition.” Chochorowski v. Home Depot U.S.A., Inc., 295 S.W.3d 194, 197 (Mo.App. E.D.2009). “[W]e accept all properly pleaded facts as true, giving the pleadings their broadest intendment, and we construe all allegations favorably to the pleader.” Id. We will affirm the dismissal “if it is supported by any ground, regardless of whether the trial court relied on that ground.” France v. Podleski, 303 S.W.3d 615, 618 (Mo.App. S.D.2010).

Analysis

Appellant contends the trial court erred in sustaining the motion to dismiss, although Appellant's points are multifarious without complete explanation. The issue presented to this Court is whether the trial court's decision to sustain the motion to dismiss was correct.

Initially, we note that Appellant's brief is deficient because it does not comply with most, if not all, of the provisions of Rule 84.04. Appellant is self-represented before this Court; however, all appellate briefs are required to comply with Rule 84.04, regardless of whether Appellant is represented by counsel. Carden v. City of Rolla, 290 S.W.3d 728, 729 (Mo.App. S.D.2009).

We have the discretion to dismiss this appeal because of Appellant's failure to comply with Rule 84.04. Emig ex rel. Emig v. Curtis, 117 S.W.3d 174, 177 (Mo.App. W.D.2003). However, we are hesitant to dismiss an appeal unless the deficiency affects the disposition of the appeal on its merits. Id. In this case, our review is limited to the adequacy of the petition as challenged by the motion to dismiss. Because we review that issue de novo the deficiencies in the brief do not substantially impede appellate review. The Appellant's brief is sufficient to the extent that it asserts the trial court erred by dismissing his petition for failure to state a claim because he believes it did state a claim upon which relief can be granted.

Rule 55.05 states, in pertinent part, that “[a] pleading that sets forth a claim for relief ... shall contain (1) a short and plain statement of the facts showing that the pleader is entitled to relief....”

Appellant's factual allegations directly against Respondent were that Respondent had “been informed of all the details concerning this matter,” that “[Respondent] is also known for losing evidence,” and that Respondent has “shown official misconduct which is a public officer's corrupt violation of assigned duties by malfeasance, or nonfeasance, misbehavior in office as a superintendent at S.C.C.C.” These factual allegations are either too vague or conclusory to show that Appellant is entitled to relief from Respondent for negligence, criminal negligence, reckless driving, tampering with mail, conspiracy, or forgery. There is no short and plain statement of facts showing Appellant is entitled to relief.

We next turn to allegations of Respondent's liability utilizing the doctrine of respondeat superior. We note Respondent's liability is limited because he is a public officer:

It is well-settled law that public officers are not responsible for acts of subordinate officials, if such subordinates are themselves employees of the government, where there is no negligence on the part of such public officials in employing them, unless the superior officer has directed or encouraged or ratified such acts, or has personally co-operated therein....

Davis–Bey v. Missouri Dept. of Correction, 944 S.W.2d 294, 298–299 (Mo.App. W.D.1997)(quoting Jackson v. Wilson, 581 S.W.2d 39, 46 (Mo.App. W.D.1979)).

Appellant's initial claims here, based upon negligence, criminal negligence, and reckless driving, stem from an automobile accident on April 29, 2003. Appellant alleged in his petition that he and other inmates were transported by the Missouri...