State ex rel. J.E. Dunn, Jr. & Associates, Inc. v. Schoenlaub

• Decision Date: 16 April 1984
• Docket Number: 65320,Nos. 65218,s. 65218
• Citation: 668 S.W.2d 72
• Parties: STATE ex rel. J.E. DUNN, JR. & ASSOCIATES, INC., Relator, v. The Honorable Fred E. SCHOENLAUB, Judge, Circuit Court, Buchanan County, Respondent. STATE ex rel. ST. JOSEPH HOSPITAL, a Missouri Corporation, Relator, v. The Honorable Byron L. KINDER, Judge, Circuit Court, Cole County, Respondent.
• Court: Missouri Supreme Court

Page 72

668 S.W.2d 72

STATE ex rel. J.E. DUNN, JR. & ASSOCIATES, INC., Relator, v. The Honorable Fred E. SCHOENLAUB, Judge, Circuit Court, Buchanan County, Respondent.

STATE ex rel. ST. JOSEPH HOSPITAL, a Missouri Corporation, Relator, v. The Honorable Byron L. KINDER, Judge, Circuit Court, Cole

County, Respondent.

Nos. 65218, 65320.

Supreme Court of Missouri En Banc.

April 16, 1984.

Cyril M. Hendricks, Curtis G. Hanrahan, Jefferson City, for relators.

R. Dan Boulware, R. Edward Murphy, St. Joseph, P. Pierre Dominique, Jefferson City, for respondents.

GUNN, Judge.

This appeal is a meld of two original proceedings in prohibition. Relator St. Joseph Hospital is plaintiff in a suit brought in the Circuit Court of Buchanan County against relator J.E. Dunn, Jr. & Assoc., Inc. (Dunn). Relator Dunn is plaintiff in a later-filed suit brought in the Circuit Court of Cole County against the hospital and certain other parties. Each relator in its position as defendant in the action against it filed a motion to dismiss based on the pendency of the action which it is prosecuting as plaintiff. Both motions were overruled by the respective circuit courts, and both parties seek prohibition in this Court to prevent further proceedings in the adverse actions. We issued our provisional rule in response to each of relator's petitions. Relator St. Joseph Hospital's rule in prohibition is now made permanent, and the Circuit Court of Cole County is directed to dismiss relator Dunn's petition with respect to the hospital only. Relator Dunn's provisional rule in prohibition is hereby quashed.

Stripped of all festoons, the bare, dispositive issue relates to Rule 55.32(a)--compulsory counterclaims. As developed in the opinion, Dunn's cause of action against St. Joseph Hospital should be part of a compulsory counterclaim in the Buchanan County Circuit Court. The Cole County Circuit Court is therefore without jurisdiction over the contest between St. Joseph Hospital and Dunn, and prohibition is the appropriate remedy to be applied in this circumstance. State ex rel. Davis v. Moss, 392 S.W.2d 260, 261 (Mo. banc 1965); Jewish Hospital of St. Louis v. Gaertner, 655 S.W.2d 638, 640 (Mo.App.1983).

The facts are established by the petitions in prohibition and their returns. St. Joseph Hospital contracted with relator Dunn to construct a new hospital facility, with Dunn to act as general contractor. After substantial work had been completed and pursuant to the contract's arbitration clause, Dunn instituted proceedings to arbitrate a claim against the hospital for overages. The hospital, taking the first court action, filed the Buchanan County suit seeking to enjoin Dunn from continuing to pursue arbitration of the claim. The hospital's petition also alleged the existence of substantial claims against Dunn for failure to perform but did not request specific corresponding relief.

Subsequently, Dunn filed its action in Cole County against St. Joseph Hospital, its construction manager and the architect on the project. Dunn's petition alleged that it was caused additional work by reason of the hospital's interference with the performance of the construction contract and sought damages as a result of the hospital's refusal to submit to arbitration. The petition also charged the construction manager and the architect with tortiously inducing the hospital to breach the contract. The hospital thereafter amended its petition seeking damages for Dunn's alleged delay on the project.

The hospital asserts that the Cole County action should be barred, either under the doctrine of abatement or as a compulsory counterclaim under Rule 55.32(a) to the Buchanan County action. Dunn denies that the Cole County action involves a compulsory counterclaim to the Buchanan County suit and further contends that the hospital is barred from asserting its claim for damages in the latter litigation, also under the doctrine of abatement.

Dunn also contends that its petition for writ of prohibition must be answered by the judge of the Circuit Court of Buchanan County in his own name.

Raised by both parties, the first matter to be considered is abatement, which when applied destroys the cause of action. Cregan v. Clark, 658 S.W.2d 924, 926-27 (Mo.App.1983). Obviously, then, each party seeks its application in its favor.

The principle of abatement bears the enlightening appellation of "pending action doctrine." It comes into being in the situation in which a subsequent suit is instigated by the plaintiff in a previous suit. Treatment of the second action is generally as follows: "[W]here two actions involving the same subject matter between the same parties are brought in courts of concurrent jurisdiction, the court in which service of process is first obtained acquires exclusive jurisdiction and may dispose of the entire controversy without interference from the other." State ex rel. General Dynamics v. Luten, 566 S.W.2d 452, 458 (Mo. banc 1978). Abatement is also properly applied to a later action between the same parties for the same cause of action brought in the same court or a court of another jurisdiction. See State ex rel. Industrial Properties, Inc. v. Weinstein, 306 S.W.2d 634, 637-38 (Mo.App.1957) (dealing with annexation proceedings). However, this bit of rubric ordinarily does not apply to cases where the parties' alignment (as plaintiff or defendant) in the original suit is reversed in the subsequent action, as it is designed to prohibit one party from twice prosecuting the same cause of action. Reliance for this precept is found in some venerable authorities: Long v. Lackawana Coal & Iron Co., 233 Mo. 713, 136 S.W. 673, 679 (1911); Rodney v. Gibbs, 184 Mo. 1, 82 S.W. 187, 188-89 (1904); Northcutt v. McKibben, 236 Mo.App. 605, 159 S.W.2d 699, 704 (1942); State ex rel. Aetna Life Ins. Co. v. Knehans, 31 S.W.2d 226, 228-29 (Mo.App.1930); 1 Am.Jur.2d Abatement, Survival, and Revival, § 23 (1962).

Notwithstanding, abatement is manifestly appropriate even though the parties are reversed in the situation in which the second cause of action is essentially identical to the first action filed. Younghaus v. Lakey, 559 S.W.2d 30, 31 (Mo.App.1977); Nicholls v. Lowther, 491 S.W.2d 3, 5 (Mo.App.1973); State ex rel. Dunphy v. Eversole, 339 S.W.2d 506, 509 (Mo.App.1960); Am.Jur.2d Abatement, supra. ¹

The claims asserted by St. Joseph Hospital and Dunn as plaintiffs in the underlying actions are not so substantially identical as to justify abatement. The hospital brought its action to prevent Dunn from arbitrating certain claims. A favorable judgment for the hospital would not have prevented Dunn from asserting them in a judicial forum. Dunn's suit, although it would likely have concluded the issue of its right to arbitrate its claims, also sought to recover for them.

Neither Dunn's claim for...