Brown v. Wyrick

626 S.W.2d 674, 1981 Mo. App. LEXIS 3239
CourtMissouri Court of Appeals
DecidedDecember 29, 1981
DocketNos. WD 31799, WD 31800
StatusPublished
Cited by3 cases

This text of 626 S.W.2d 674 (Brown v. Wyrick) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Wyrick, 626 S.W.2d 674, 1981 Mo. App. LEXIS 3239 (Mo. Ct. App. 1981).

Opinion

SOMERVILLE, Chief Judge.

Henry Brown and Armmon Lee Lang, inmates of the Missouri State Penitentiary, separately filed petitions in the Circuit Court of Cole County for change of name under Rule 95. Henry Brown sought to have his name changed to Sha-Sha Malik Olugbala.1 Armmon Lee Lang sought to have his name changed to Armmon Tilib Zihure.2 A common reason for the desired change of name was assigned by each in their respective petitions, i.e., “to break the worldly bondage which ties me to that of a slave owner, to that of a name which would tie me closer to the bondage of my ancient ancestors.”

Donald Wyrick, Warden of the Missouri State Penitentiary, Donald Jenkins, Director of the Missouri Division of Corrections, Colonel A. R. Lubker, Superintendent of the Missouri Highway Patrol, and the State of Missouri jointly filed motions to intervene in each case pursuant to Rule 52.12(a)(2), and leave to do so was granted by the trial court. Petitioners and interve-nors stipulated that the cases be consolidated for “hearing”, and the trial court so ordered. At the conclusion of an evidentia-ry hearing the respective petitions for change of name were denied by the trial court and each petitioner separately appealed. The separate appeals were consolidated by order of this court.

The petitioners, in a joint brief, raise four points of error on appeal: (1) the trial court erred in “granting intervenors the right to intervene pursuant to Rule 52.12”; (2) the trial court applied erroneous “standards” in determining that the individual requests for change of name were “improper” and “detrimental” to the interests of the interve-nors; (3) the trial court erred in denying each petitioner’s request for change of name because the evidence showed that any harm, inconvenience or detriment to inter-venors would, “at most”, be “minimal”, and thereby failed to rise “to the level of evidence necessary under Missouri law to justify the court’s denial of petitioners’ name change request”; and (4) the trial court erred in permitting Donald Wyrick, Warden of the Missouri State Penitentiary, to testify that petitioner Brown was a “known dangerous man” because “no foundation” was laid to show how Wyrick “arrived at his conclusion” and said testimony “unfairly prejudiced the court’s findings of fact and conclusions of law.”

Disposition of petitioners’ first point— that the trial court erred in granting leave to intervenors to intervene — focuses upon Rule 52.12(a)(2) which reads as follows: “(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” 3 At this juncture it is also perri-[676]*676nent to note that portion of prior Rule 95.01 (in effect at the time of the hearing which generated the consolidated appeals)4 which read as follows: “it shall be the duty of the judge of such court to order such change [or name] to be made, and spread upon the records of the court, in proper form, if such judge is satisfied that the desired change would be proper and not detrimental to the interests of any other person.” (Emphasis added.) Although Rule 95, captioned “Change of Name”, procedurally permits a person to obtain a change of name in an ex parte proceeding, the italicized portion of former Rule 95.01 (see present Rule 95.04) would be rendered meaningless if intervention was inexorably precluded even though a person by timely motion pursuant to Rule 52.12(a)(2) showed that a requested change of name would be detrimental to his interests. Consequently, in the context of these appeals, the italized portion of Rule 95.01 is a parameter to be considered in determining whether intervenors had a right to intervene pursuant to Rule 52.12(a)(2).

Rule 52.12(a)(2), in plain language and as judicially interpreted, requires persons seeking to intervene to show (a) an “interest” in the subject matter of the litigation, (b) that they are “so situated that disposition of the action may as a practical matter impair or impede” their “ability” to “protect” their interest, and (c) their “interest” is not adequately represented by the existing parties. State, Etc., v. City of St. Joseph, 579 S.W.2d 804, 806 (Mo.App.1979); and Toombs v. Riley, 591 S.W.2d 235 (Mo.App.1979). Petitioners rest their first point on the alleged failure of intervenors to satisfy requirement (a), i.e., that they had an “interest” in the change of name proceedings.

The court in State, Etc. v. City of St. Joseph, supra, at 806, discussing present Rule 52.12 vis-a-vis former Rule 52.11, observed that in this state the “general rule” has always been that statutes or rules pertaining to intervention “should be liberally construed to permit broad intervention”. The court also observed, however, that present Rule 52.12 amending former Rule 52.11 did not change or eliminate the requirement that a person seeking to intervene has an interest in the subject of the litigation. 579 S.W.2d at 806-07. In the course of doing so, the court went to some length to point out that the analysis in State ex rel. Farmers Mutual Automobile Insurance Co. v. Weber, 364 Mo. 1159, 273 S.W.2d 318 (Mo.banc 1954), as to what constituted an “interest” in the subject of the litigation was still valid. 579 S.W.2d at 807. State ex rel. Farmers Mutual Automobile Insurance Co. v. Weber, supra, analyzed “interest” in the subject of the litigation in the context of Section 507.090, RSMo 1949, the statutory precursor of former Rule 52.-11 and present Rule 52.12. The court in Weber concluded, in part, that “such ‘interest’ does not include a mere consequential, remote or conjectural possibility of being in some manner affected by the result of the original action.” 273 S.W.2d at 321. Legal analysis of “interest” in the subject of the litigation in conjunction with present Rule 52.12(a) took on an additional dimension in the more recent case of Toombs v. Riley, supra, 591 S.W.2d at 236: “The amended Rule 52.12(a)(2) rescripts the federal Rule 25(a)(2) and adopts its rationale: to divert inquiry from doctrinaire principles of res judicata to practical considerations to determine the interest which qualifies for intervention. . . . The interest for intervention under amended Rule 52.12(a)(2), therefore, is a practical direction for the disposition of litigation to encompass as many presumptively affected persons as may be compatible with the avoidance of multiple suits and the demands of due process.”

[677]*677Treating the above principles as a legal matrix, attention now turns to the reasons assigned by intervenors to support their claim that they had an “interest” in the subject of the change of name proceedings.

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626 S.W.2d 674, 1981 Mo. App. LEXIS 3239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-wyrick-moctapp-1981.