State ex rel. Less v. O'Brien

814 S.W.2d 2, 1991 Mo. App. LEXIS 1256, 1991 WL 152996
CourtMissouri Court of Appeals
DecidedAugust 13, 1991
DocketNo. 59960
StatusPublished
Cited by4 cases

This text of 814 S.W.2d 2 (State ex rel. Less v. O'Brien) 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
State ex rel. Less v. O'Brien, 814 S.W.2d 2, 1991 Mo. App. LEXIS 1256, 1991 WL 152996 (Mo. Ct. App. 1991).

Opinion

PUDLOWSKI, Judge.

This is an original proceeding in prohibition brought by relators against respondent circuit judge to prohibit the latter from denying relators’ motion to dismiss Count II of plaintiff’s petition. We quash the preliminary order in prohibition.

Relators filed suit (hereinafter initial proceeding) against Lurie in the United States District Court for the Eastern District of Missouri in June, 1984. Relators charged, in their complaint and amendments thereto, that Lurie had wrongfully induced them to invest substantial amounts of money in speculative oil ventures. These allegations were set forth in nine counts; two of which, Count I and Count VI, alleged fraud. Count I alleged securities fraud and Count VI alleged common law fraud. Relators abandoned these two fraud counts before submitting the case to the jury. The jury returned a defendant’s verdict for Lurie on the remaining seven counts. Re-lators did not appeal the verdict.

On May 18, 1990, Lurie filed a two count malicious prosecution suit (hereinafter underlying suit) against relators in the Circuit Court of St. Louis County. Count I of the underlying suit alleged that relators maliciously prosecuted the entire initial proceeding without probable cause. That count is not directly involved in this prohibition proceeding. Count II of the underlying suit specifically alleged that the two fraud counts of the initial proceeding were instituted maliciously and without probable cause. Relators answered Count I, and moved to dismiss Count II on the ground that abandonment of the fraud theories for recovery prior to submission to the jury in the initial proceeding did not suffice as an independent basis for malicious prosecution. On March 1, 1991 the Honorable Emmett M. O’Brien overruled relators’ motion to dismiss Count II of Lurie’s complaint.

Relators filed a Petition for Writ of Prohibition seeking to restrain the circuit court from denying the motion to dismiss. On April 18, 1991, this court issued a Preliminary Order in Prohibition. The issues were briefed and oral arguments were heard.

The primary purpose of the writ of prohibition is to prevent usurpation of judicial power, § 530.010, RSMo 1986, not to provide a remedy for all legal difficulties nor serve as a substitute for appeal. State ex rel. Eggers v. Enright, 609 S.W.2d 381, 382 (Mo. banc 1980). Generally, lack of jurisdiction and lack of an adequate remedy by appeal must be established before issuance of a writ. State ex rel. Martin v. Peters, 649 S.W.2d 561, 563 (Mo.App.1983). Furthermore, prohibition will not be granted unless an act in excess of jurisdiction is clearly evident and the presumption of correct action in favor of the trial judge is overcome by relators. Id. The propriety of issuing a writ of prohibition was delineated in State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889 (Mo. banc 1983), where the Supreme Court stated, “we should not continue unfettered use of the writ of prohibition to allow interlocutory review of trial court error.” Id. at 891.

Relators rely in part on State ex rel. Noranda Aluminum, Inc. v. Rains, 706 S.W.2d 861 (Mo. banc 1986), where the Supreme Court deviated from the Morasch Court’s strict circumscription of the writ. The Court recognized the writ’s above stated purpose, discussed the unsettled application of the writ to those situations where [4]*4appeal does not provide adequate remedy, and created an exception to the writ requirements. In granting the writ compelling complainant to appear before the Commission on Human Rights the Supreme Court stated:

Thus, where there is an issue which might otherwise escape this Court’s attention for some time and which in the meantime is being decided by administrative bodies or trial courts whose opinions may be reason of inertia or other cause become percedent [sic]; and, the issue is being decided wrongly and is not a mere misapplication of law; and, where the aggrieved party may suffer considerable hardship and expense as a consequence of such action, we may entertain the writ for purposes of judicial economy under our authority to ‘issue and determine original remedial writs.’ Mo. Const, art. V, § 4.1.

Noranda Aluminum, 706 S.W.2d at 862-63 (footnote omitted).

The Supreme Court recently reinforced the limited applicability of the writ outside the usual two part test in State ex rel. Dally v. Elliston, 811 S.W.2d 371 (Mo. banc 1991). The Dally Court warned that departure from the usual application of prohibition requires a peculiarly limited situation where irreparable harm may come to a litigant if some type of justifiable relief is not made available to respond to a trial court’s order. Id. at 373. This precedent requires us to apply the two part test, unless the Noranda considerations would justify dispensing with it.

Although relators did not explicitly argue that the circuit court acted in excess of its jurisdiction, this allegation can be inferred from their contention that Lurie failed to state a cause of action and, therefore, respondent erroneously denied rela-tors’ motion to dismiss. Regardless, rela-tors have not satisfied the burden of showing and it is not clearly evident that the circuit court acted in excess of its jurisdiction by not dismissing Count II.

The second prong of the test for determining whether prohibition will lie requires us to determine whether failure to dismiss an alleged cause of action may be raised on appeal. Relators argue that there is no adequate remedy by appeal because nothing can cure this matter until the issue is finally taken up on appeal. They contend that in the interim, relators and other similarly-situated parties will be harmed by having to litigate an unwarranted cause of action.

Appellate review is available to relators once all of the issues have been adjudicated. Relators can certainly attack the denial of the motion to dismiss on appeal as improper. The extraordinary writ of prohibition should not be used to allow an interlocutory appeal of alleged trial court error, State ex rel. Clem Trans., Inc. v. Gaertner, 688 S.W.2d 367, 368 (Mo. banc 1985), especially when the circumstances do not fit under the Noranda exception.

In arguing that this is such a case contemplated by Noranda, relators assert that Count II should be dismissed because it does not and cannot state a claim on which relief is granted. They contend that Lu-rie’s malicious prosecution claim is not based on an allegation of a “commencement of a judicial proceeding;” one of the requirements for stating a malicious prosecution claim. Zahorsky v. Griffin, 690 S.W.2d 144,151 (Mo.App.1985). Therefore, permitting trial of this count would entail the excessive expense and vexation of defending useless and unwarranted litigation.

We find that this was not a case anticipated by Noranda.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State Ex Rel. Lopp v. Munton
67 S.W.3d 666 (Missouri Court of Appeals, 2002)
State ex rel. FAG Bearings Corp. v. Perigo
8 S.W.3d 118 (Missouri Court of Appeals, 1999)
State ex rel. White v. Shinn
903 S.W.2d 194 (Missouri Court of Appeals, 1995)
State ex rel. Blue Cross & Blue Shield of Missouri
897 S.W.2d 167 (Missouri Court of Appeals, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
814 S.W.2d 2, 1991 Mo. App. LEXIS 1256, 1991 WL 152996, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-less-v-obrien-moctapp-1991.