State ex rel. Newton v. Conklin

767 S.W.2d 112, 1989 Mo. App. LEXIS 397, 1989 WL 25470
CourtMissouri Court of Appeals
DecidedMarch 22, 1989
DocketNo. 15952
StatusPublished
Cited by6 cases

This text of 767 S.W.2d 112 (State ex rel. Newton v. Conklin) 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. Newton v. Conklin, 767 S.W.2d 112, 1989 Mo. App. LEXIS 397, 1989 WL 25470 (Mo. Ct. App. 1989).

Opinion

CROW, Presiding Judge.

This original proceeding in prohibition arises from an action under the Uniform Parentage Act (“UPA”), C.C.S.S.B. 328, Laws 1987, pp. 646-53, effective July 15, 1987, codified as §§ 210.817-.852, RSMo Supp.1987. Before discussing the issues confronting us it is necessary to set forth the relevant details of that action (“the underlying case”).

Plaintiffs in the underlying case are B_ W_B_(“the child”), allegedly bom in 1983, and his mother, T_ A_ B_ The relief sought by the plaintiffs in the underlying case includes an order declaring Denver Wesley Newton, Jr. (“Denver”), relator here, to be the child’s father.

Denver, in his answer in the underlying case, denies paternity.

Faced with Denver’s denial, plaintiffs filed a motion in the underlying case asking the trial judge to order plaintiffs and Denver to “submit to extended factor blood tests for the purpose of determining the probability of [Denver’s] paternity of [the child].” The motion prayed, in pertinent part:

“2. That the blood samples be drawn, photographs be taken, and fingerprints be taken of said persons by an employee of Springfield Medical Laboratory[,] 609 Cherry, ... Springfield, Missouri_
3. That said blood samples be submitted to National Paternity Laboratories, Inc., 5698 Springboro Pike, Dayton, OH 45449, for analysis.”

The trial judge conducted a hearing on the motion and took it under advisement. Ten days later Denver commenced the instant prohibition proceeding in this Court, alleging that the trial judge, respondent here, had advised counsel in the underlying case that respondent would grant the motion unless prohibited by an appellate court. Denver’s petition in this Court pled four grounds. They are:

“a. The Motion to Compel Blood Tests and the proposed Order fail to meet the requirements of Missouri Supreme Court Rule 60.01(a)1 in that the motion and order do not state the ‘person or persons’ by whom the blood tests are to be performed.
b. The Motion to Compel Blood Tests and the proposed Order fail to meet the requirements of ... Rule 60.01(a) in that the Court’s Order would not be an order to submit to blood examinations ‘by a physician or physicians.’
c. The Motion to Compel Blood Tests and the proposed Order fail to designate an expert as required by ... Section 210.834 (Supp., 1987).2
d. The Trial Court failed to determine the qualifications of the expert as required by ... Section 210.834 (Supp., 1987).”

We issued an order directing respondent to take no further action on the motion for blood tests. Our order instructed respondent to show cause by a specified date why a preliminary order in prohibition should not be issued. Respondent filed nothing within the time allowed, so we issued a preliminary order in prohibition barring respondent from further action on the motion [114]*114for blood tests and establishing a deadline for respondent’s answer to relator’s petition. Respondent filed a timely answer.

Relator’s brief presents two points, each of which avers that respondent’s “announced intention to sustain the motion to compel blood tests was error.” In neither point, however, does relator contend respondent lacks jurisdiction to grant the motion. Whether, in such circumstances, relator is entitled to utilize prohibition as a means of testing the correctness of respondent’s proposed order is a subject we must consider in determining whether our preliminary order should be made absolute.

In State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889 (Mo. banc 1983), the Supreme Court of Missouri declined to utilize prohibition to stop a circuit court from proceeding to trial in a cause of action allegedly barred by the statute of limitation. The majority opinion in Morasch recognized that the constitutional limits on judicial authority to effect appellate jurisdiction are violated by overgenerous use of the writ of prohibition, and stated that the unfettered use of such device to allow interlocutory review of trial court error should not continue. Id. at 891. The opinion reasoned that inasmuch as the statute of limitation did not restrict the power of the circuit court but merely set up a condition precedent to the establishment of the cause of action, the decision of the circuit court to proceed to trial constituted an, error of law rather than an act in excess of jurisdiction. Id. at 892[2].

In State ex rel. Hannah v. Seier, 654 S.W.2d 894 (Mo. banc 1983), handed down the same day as Morasch, the Supreme Court of Missouri refused to use prohibition to prevent a circuit court from dismissing an information in a criminal case, holding that as the circuit court had jurisdiction of the case its decision to dismiss the information must be allowed to stand whether right or wrong. Id. at 896.

In decisions subsequent to Morasch and Hannah regarding the use of prohibition to obtain interlocutory review by an appellate court of alleged circuit court error in a pending case the Supreme Court of Missouri appears to have retreated from those holdings. As we shall see, however, the extent of the departure is not easily discerned.

In State ex rel. Richardson v. Randall, 660 S.W.2d 699 (Mo. banc 1983), decided three months after Morasch and Hannah, the Supreme Court of Missouri employed prohibition to bar a circuit court from compelling an accused in a forgery case to disclose to the prosecution the name of a handwriting expert retained by the accused, which expert the accused did not intend to use at trial. The opinion in Richardson said:

“This Court has denounced promiscuous and expansive use and abuse of prohibition to allow review of trial court error, particularly in circumstances other than those concerning the question of trial court jurisdiction. [Citing Morasch and Hannah ] But from time to time in peculiarly limited situations there are instances in which absolute irreparable harm may come to a litigant if some spirit of justifiable relief is not made available to respond to a trial court’s order. In such circumstances, the extemporaneous character of prohibition may be the remedy to be applied.” Id. at 701.

Richardson held that the circuit court’s ruling would result in irreparable harm to the accused, and that she faced the plight of being without other relief, in that once the prosecution had the information regarding the anonymous expert the prosecution could consult with the expert to the detriment of the accused. As no adequate remedy existed by appeal, prohibition was necessary. Id. The author of the majority opinions in Morasch and Hannah concurred in Richardson.

In State ex rel. General Electric Co. v. Gaertner, 666 S.W.2d 764 (Mo.

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Bluebook (online)
767 S.W.2d 112, 1989 Mo. App. LEXIS 397, 1989 WL 25470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-newton-v-conklin-moctapp-1989.