State v. Atwell, Case Number: WD61421.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Ronald R. Holliger
• Parties: State of Missouri, ex rel. Missouri State Highway Patrol, Relator. v. The Honorable Charles E. Atwell, Judge of the Circuit Court of Jackson County, Missouri, Respondent.
• Docket Number: Case Number: WD61421.
• Decision Date: 28 October 2003

Page 1

State of Missouri, ex rel. Missouri State Highway Patrol, Relator.
v.
The Honorable Charles E. Atwell, Judge of the Circuit Court of Jackson County, Missouri, Respondent. Case Number: WD61421. Court of Appeals of Missouri, Western District. October 28, 2003.

Appeal from Circuit Court of Jackson County, Hon. Charles Emmert Atwell

PRELIMINARY WRIT IN PROHIBITION DISMISSED.

Paul C. Wilson, Counsel for Appellant.

George A. Barton, Counsel for Respondent.

Opinion

Ronald R. Holliger, Judge.

The Missouri state highway patrol seeks a writ of prohibition barring the trial court from proceeding in the underlying suit on the basis that the claims against the patrol are barred by the doctrine of sovereign immunity. The second amended petition before the court alleges that the patrol seized the plaintiff's property and transferred it to federal authorities in violation of Missouri's criminal activity forfeiture act, section 513.647, RSMo. 2000. The court denied the patrol's motion to dismiss on the grounds of sovereign immunity. The plaintiff did not plead a waiver of sovereign immunity in reliance upon a prior decision of this court in Karpierz v. Easley, 31 S.W.3d. 505 (Mo. App. 2000).

Division holds: (1) Karpierz misstated the law in implying that there is no necessity to plead an express or implied waiver of sovereign immunity for violations of the CAFA transfer provisions.

(2) The plaintiff may have additional theories for recovery that were not considered and pleaded due to the misstatement of law contained within Karpierz.

(3) The current state of the pleadings does not admit a conclusion that the state is immune from suit and, therefore, issuance of a writ of prohibition is inappropriate.

Concurring Opinion Summary by Judge Smart:

This author notes that because there is no allegation in the petition that the plaintiffs are "innocent parties" and no allegation that the seized property was not generated by illegal activity, and because the plaintiffs apparently pleaded guilty to a forfeiture-related felony, it is not clear whether the plaintiffs are able to plead a claim for damages.

ORIGINAL PROCEEDING IN PROHIBITION

The Missouri State Highway Patrol seeks a writ of prohibition barring the respondent from proceeding in the underlying suit on the basis that the claims against it are barred by the doctrine of sovereign immunity. The second amended petition before the trial court alleges that the relator seized property (cash) in which the plaintiff in the underlying proceeding claims an ownership interest. The petitioner also claims that the cash was given to federal authorities by relator in violation of Missouri's Criminal Activity Forfeiture Act, Section 513.647, RSMo. 2000.¹ Respondent denied relator's motion to dismiss on the grounds of sovereign immunity. The plaintiff below did not plead a waiver of sovereign immunity in reliance upon a prior decision of this court in Karpierz v. Easley, 31 S.W.3d. 505 (Mo. App. 2000). Believing that relator may be able to plead a waiver of sovereign immunity or claims that are not barred by sovereign immunity, we exercise our discretion and determine that a writ should not issue. State ex rel. Pub. Hous. Agency of City of Bethany v. Krohn, 98 S.W.3d 911, 912 (Mo. App. 2003).

Plaintiffs second amended petition asserts three theories in separate counts: assumpsit for money had and received, unjust enrichment, and replevin. An action for replevin does not generally lie for money absent an identifiable, specific fund of money. A.R. by and through C.R. v. Topper, 834 S.W.2d 238, 239 (Mo. App. 1992). Replevin of specific property presumably would not raise sovereign immunity issues because there would be no disbursement of money from the public treasury. The action for money had and received is a remedy at law governed by equitable principles and founded upon an implied contract created by law. Weltscheff v. MCI, 604 S.W.2d 796, 801 (Mo. App. 1980). "Unjust enrichment occurs when a person retains and enjoys the benefit conferred upon him without paying its reasonable value." Smith v. Smith, 17 S.W.3d 592, 597 (Mo. App. 2000).

The plaintiffs argue that under Karpierz, a claim for money had and received is not barred by sovereign immunity. The State argues that we misstated the law in Karpierz when we said:

An action for money had and received is an action sounding in assumpsit. Jurgensmeyer v. Boone Hospital Center, 727 S.W.2d 441, 443 (Mo. App. 1987). This claims sounds in contract and waives all torts arising from the incident. Palo v. Stangler, 943 S.W.2d 683, 685 (Mo. App. 1997). A claim for money had and received is contractual by nature as thus not barred by sovereign immunity Id.

Karpierz, 31 S.W.3d at 511 (emphasis added). Specifically, the relator argues that the emphasized statement is obiter dictum and misstates the law. The relator is correct that the statement in Karpierz is dicta because no issue of sovereign immunity was raised. More importantly, however, is that neither Karpierz nor Palo upon which it relied cited existing contrary and binding Supreme Court precedent. Palo, in turn, relied upon Gavan v. Madison Memorial Hospital, 700 S.W.2d 124, 126 (Mo. App. 1985), which again did not consider contrary Supreme Court authority.

In Gavan, the court held that a hospital was not protected from suit for breach of contract for the hospital's failure to follow its own personnel policies on termination because the suit was essentially a contract claim. The court based its decision on its understanding that V.S. DiCarlo Construction Co., Inc. v. State of Missouri, 485 S.W.2d 52, 56 (Mo. 1972), appeal after remand, 567 S.W.2d 394 (Mo. App. 1978), held that "when the state enters into a validly authorized contract, it lays aside whatever privilege of sovereign immunity it otherwise possesses and binds itself to performance just as any private citizen." Gavan, 700 S.W.2d at 127. Gavan viewed DiCarlo as holding that the State is not protected from suits sounding in contract. While DiCarlo does stand for the proposition that the State may not be protected by sovereign immunity on some contract actions, it does not hold that all claims against the state sounding in contract, implied contract, or equity are not barred by sovereign immunity. Rather, DiCarlo stands for the proposition that the State does have sovereign immunity...