State of Missouri ex rel. Melissa Hogg, Relator v. The Honorable Wendy Wexler Horn, Judge of the Twenty-Fourth Judicial Circuit, St. Francois County, Div. 1

• Court: Missouri Court of Appeals
• Decided: September 19, 2023
• Docket: ED111910
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District WRIT DIVISION FOUR

STATE OF MISSOURI EX REL. ) No. ED111910 MELISSA HOGG, ) ) Relator, ) Appeal from the Circuit Court of ) St. Francois County vs ) Cause No. 22SF-CC00023 ) THE HONORABLE WENDY WEXLER ) HORN, JUDGE OF THE TWENTY ) Honorable Wendy Wexler Horn FOURTH JUDICIAL CIRUCIT IN THE ) COUNTY OF, ST. FRANCOIS, DIV 1, ) ) Respondent. ) Filed: September 19, 2023

Melissa Hogg (“Relator”) seeks a writ of prohibition, ordering the Honorable Wendy

Wexler Horn (“Respondent”) to dismiss her order joining Relator’s mother (“Mother”) as

another defendant in the underlying case against Charles Haynes. Because Rule 52.04(a) does

not support the joinder of Mother as a necessary party, the circuit court’s ruling sustaining

Haynes’s motion for joinder constituted an abuse of discretion. This Court makes permanent its

preliminary order in prohibition. Background

Haynes pleaded guilty to deviant child sodomy against Relator. The circuit court

sentenced him to a seven-year term of imprisonment. Relator then sued Haynes, seeking

damages for the abuse and harassment she suffered prior to Haynes’s incarceration. Relator filed

a motion for partial summary judgment, which the circuit court sustained. The case was then set

for trial on the remaining count in the petition and to determine damages. Before trial, Haynes

filed a motion for leave to join Mother as a necessary and indispensable third party under Rule

52.04(a), claiming his actions toward Relator were committed at Mother’s direction and Mother

was jointly responsible for any damages owed to Relator. Respondent sustained Haynes’s motion

to join Mother as a third party.

Relator filed a petition for a writ of prohibition or, in the alternative, writ of mandamus in

this Court, seeking Mother’s removal as a defendant. This Court issued a preliminary writ of

prohibition, directing Respondent to file an answer to Relator’s petition and to refrain from all

action other than vacating the order allowing joinder of an indispensable party under Rule 52.04

and considering any motion to add a third-party defendant under Rule 52.11. Respondent did not

file an answer.

Standard of Review

This Court has jurisdiction to issue original remedial writs. Mo. Const. art. V, sec. 4.1.

Prohibition is an extraordinary remedy this Court issues with “great caution and forbearance and

only in cases of extreme necessity.” State ex rel. T.J. v. Cundiff, 632 S.W.3d 353, 355 (Mo. banc

2021) (quoting State ex rel. Douglas Toyota III, Inc. v. Keeter, 804 S.W.2d 750, 752 (Mo. banc

1991)). A writ of prohibition is discretionary. State ex rel. Dep’t of Health & Senior Servs. v.

Slusher, 638 S.W.3d 496, 498 (Mo. banc 2022). A writ of prohibition will lie only where

2 necessary to prevent a usurpation of judicial power, to remedy an excess of jurisdiction, or to

prevent an absolute irreparable harm to a party. State ex el. Becker v. Wood, 611 S.W.3d 510,

513 (Mo. banc 2020). “A writ of prohibition is appropriate when a party joined pursuant to Rule

52.04 is not needed for just adjudication.” State ex rel. Woodco, Inc. v. Phillips, 603 S.W.3d 873,

876 n.1 (Mo. banc 2020).

Analysis

Before addressing the merits of this Petition, this Court addresses Respondent’s failure to

file an answer to the preliminary order in prohibition. In the preliminary order, this Court

directed Respondent to file an answer and suggestions in opposition to the petition for

prohibition on or before September 1, 2023. This Court stated that failure to comply with this

directive would result in a default judgment against Respondent. Nevertheless, Respondent did

not file an answer. Accordingly, Respondent is in default. This Court could enter judgment

making permanent the preliminary order in prohibition on this basis alone, State ex rel. Taylor v.

Banas, 563 S.W.3d 191 (Mo. App. 2018), but will exercise its discretion to address the merits of

the writ petition.

Relator claims the circuit court improperly joined Mother as a defendant because she was

not a necessary party. The joinder of necessary parties is governed by Rule 52.04. Under Rule

52.04(a), “a person may be considered a necessary party if (1) in the person’s absence complete

relief cannot be afforded or (2) the person claims an interest in the subject matter, and disposition

of the matter in the person’s absence may impede the protection of that interest or subject the

person to multiple or inconsistent obligations.” Edmunds v. Sigma Chapter of Alpha Kappa, 87

S.W.3d 21, 27 (Mo. App. 2002). If a non-party is determined to be a necessary party, then the

3 Court must determine whether that party is an “indispensable party” according to the factors set

forth in Rule 52.04(b). Id.

Neither condition of Rule 52.04 was met. First, Mother’s presence in the underlying suit

was not necessary to provide complete relief. In a case alleging joint tortfeasors, a plaintiff “may

sue all or any of the joint or concurrent tort-feasors and obtain a judgment against all or any of

them.” Gramex Corp. v. Green Supply, Inc., 89 S.W.3d 432, 440 (Mo. banc 2002) (quoting

Berry v. Kansas City Pub. Serv. Co., 343 Mo. 474, 121 S.W.2d 825, 833 (1938)); see also

Woodco, 603 S.W.3d at 876. A defendant cannot compel a plaintiff to continue an action against

another party nor may a defendant complain that other joint-tortfeasors have not been joined in

the action. Wagner v. Bondex Int’l, Inc., 368 S.W.3d 340, 359 (Mo. App. 2012); Stith v. J.J.

Newberry Co., 79 S.W.2d 447, 462 (Mo. 1934). Even assuming Haynes’s allegations of

Mother’s conduct are true, Mother’s presence in this lawsuit is not necessary to the

determination of Relator’s asserted tort claims against Haynes. See Woodco, 603 S.W.3d at 877.

Second, Mother claims no interest in the litigation and her absence from the suit would

not result in multiple or inconsistent obligations. Rather, Haynes argues that Mother should be

added to the suit so that her responsibility for Haynes’s admitted actions can also be determined

in this proceeding. Rule 52.04 is not the appropriate mechanism for joinder on this basis. “A

contrary position would violate the long-held rule that a plaintiff need not sue all joint

tortfeasors.” Id.

Conclusion

Because Rule 52.04(a) does not require Mother to be joined as a necessary party,

Respondent abused her discretion in sustaining Haynes’s motion for joinder. Respondent did not

4 have the authority to require joinder. This Court makes permanent its preliminary writ of

prohibition.

John P. Torbitzky, P. J.

Kelly C. Broniec, C. J., and Lisa P. Page, J., concur.