Opinion
No. WD 66678.
December 26, 2006.
Appeal from the Circuit Court of Cole County, The Honorable Thomas J. Brown III, Judge.
Dr. Gary Edwards appeals the grant of a motion to dismiss his action for gross negligence in favor of respondents Lawrence Gerstein, Teresa Price, Charles Klinginsmith, Larry Lovejoy, Lee Richardson, Mary Holyoke, Charlotte Hill, Jack Rushin, Julie Robinson (all members of the Missouri Board of Chiropractic Examiners), and his claim for malicious prosecution against Jeanette Stuenkel (an employee of the Missouri Board of Chiropractic Examiners). His allegations stem from the Board's instigation of a disciplinary proceeding against him. Dr. Edwards also appeals the denial of his motion to transfer venue back to Jackson County, Missouri, (where he originally filed the action) from Cole County, Missouri. Because we find that the Board members were entitled to quasi-judicial immunity, we affirm the trial court's order in that respect. Additionally, we find that Dr. Edwards failed to state a cause of action against Stuenkel for malicious prosecution and, therefore, we remand with directions to dismiss Counts II III of Dr. Edwards' Petition for Damages without prejudice. Finally, we agree with the trial court that venue was proper in Cole County because the defendants were members of a state board vested with discretionary decision making power.
Facts Procedural History
On July 27, 2005, Dr. Edwards filed a petition in Jackson County Circuit Court, alleging that the Board members acted with gross negligence in the manner in which they investigated, prosecuted, and disciplined him after the Board received complaints that Dr. Edwards was using an improper device to treat his patients and practicing medicine without a license. Dr. Edwards also brought a claim against Stuenkel for malicious prosecution for her role in "swearing out" a complaint against him when she had no independent knowledge of the claims in the complaint. The Board members and Stueknel filed a motion to dismiss, or in the alternative to transfer venue to the Circuit Court of Cole County in Jefferson City, Missouri. The case was transferred to Cole County on October 5, 2005, and Dr. Edwards's motion to transfer the case back to Jackson County was denied.
After a hearing, the Board members' and Stuenkel's motion to dismiss was granted. The trial court held that the Board members were entitled to quasi-judicial immunity for their role in investigating and deciding whether to initiate disciplinary proceedings. The court also held that Stuenkel was immune from Dr. Edwards's claims on the basis of official immunity and the public duty doctrine.
Venue
We first discuss Dr. Edwards' third point on appeal dealing with venue, as this point would be dispositive if we decide that venue was improperly transferred to Cole County. In Missouri, "[v]enue is determined solely by statute." State ex rel. Ford Motor Co. v. Manners, 161 S.W.3d 373, 375 (Mo. banc 2005) (quoting State ex rel. Doe Run Res. Corp. v. Neill, 128 S.W.3d 502, 507 (Mo. banc 2004)). Missouri's general venue statute reads, in pertinent part:
Suits instituted by summons shall, except as otherwise provided by law, be brought:
(1) When the defendant is a resident of the state, either in the county within which the defendant resides, or in the county within which the plaintiff resides, and the defendant may be found;
(2) When there are several defendants, and they reside in different counties, the suit may be brought in any such county. . . .
Section 508.010 RSMo (2000). Dr. Edwards argues that venue was proper in Jackson County under subsection (2) because one of the ten defendants resided in Jackson County. Dr. Edwards relies primarily on State ex rel. Missouri Department of Natural Resources v. Roper, 824 S.W.2d 901, 903 (Mo. banc 1992). In Roper, the plaintiff filed a negligence action in Boone County to recover damages he suffered as a result of a collision with a truck driver who resided in Boone County. Id. at 902. The plaintiff also sued the truck driver's employer, the Missouri Department of Natural Resources, a state agency. Id. The sole issue decided in the case was "whether a case against a state agency must be brought in the county of its legal residence when there are additional defendants who otherwise could be sued in the county of their residence under . . . the `general' venue statute." Id. The Missouri Supreme Court "conclude[d] that there is no constitutional or statutory requirement that such actions be brought only in the county of residence of the state agency." Id. Because "a co-defendant resid[ed] in another county, the provisions of [subsection (2) of the general venue statute] clearly and unambiguously state that, as a general rule, either Cole County or the other county — in this case, Boone County — would have venue over this suit." Id. at 903. Dr. Edwards argues that this case is precisely like Roper, in that this case involves multiple defendants and subsection (2) clearly states that venue is proper in any county in which a co-defendant resides. We believe that Roper is distinguishable because the inherent differences in the defendants roles in the two cases. In this case, the defendants were members of a state board with discretionary duties to investigate and bring charges against licensed chiropractors statewide. In Roper, the defendant was an employee of a state agency who did not possess discretionary decision making power. Also, the allegations in Dr. Edwards' petition relate to the board members' performance of their discretionary official duties.
Alternatively, Dr. Edwards argues that venue is proper in Jackson County under subsection (6): "In all tort actions the suit may be brought in the county where the cause of action accrued regardless of the residence of the parties. . . ." We need not address this argument because, based on our case law, we believe that venue was only proper in Cole County.
As stated earlier, Stuenkel was an employee of the board and not a member of the board. In any event, this fact has no bearing on the issue of venue because even if we were to look at the individualized residences of each of the defendants (which we are not), she was a resident of Boone County.
We believe that venue lies exclusively in Cole County under subsection (1) because Dr. Edwards brought suit against the respondents as state officials for official acts and "venue of actions against state executive department heads [lies] only . . . in the county where their offices are located and their principal official duties are performed." State ex rel. Nixon v. Clark, 926 S.W.2d 22, 24 (Mo.App.W.D. 1996) (quoting State ex rel. Spradling v. Bondurant, 501 S.W.2d 527, 529 (Mo.App.W.D. 1973)). Furthermore, the Missouri Supreme Court "has held that `when a state agency is the sole defendant, section 508.010(1) . . . requires that the action be brought in Cole County unless a special venue statute allows the action to be filed elsewhere.'" United Pharmacal Co. of Mo., Inc. v. Mo. Bd. of Pharmacy, 159 S.W.3d 361, 364 (Mo. banc 2005) (quoting State ex rel. Mo. Dept. of Natural Res. v. Roper, 824 S.W.2d 901, 903 (Mo. banc 1992)). We agree with respondents that venue was properly transferred from Jackson County to Cole County. Point denied.
Dismissal of The Board Members
In his first point on appeal, Dr. Edwards contends that the trial court erred in granting the Board members' motion to dismiss on the basis of quasi-judicial immunity because section 331.100.5 RSMo, supersedes this doctrine by expressly allowing the members of the Missouri Board of Chiropractic Examiners to be held liable for gross negligence and that he pled sufficient facts to support such a claim.
Standard of Review
In reviewing a trial court's dismissal for failure to state a claim upon which relief may be granted, we must examine the pleadings, by giving them the broadest reading, "treating all facts alleged as true, construing allegations as favorable to [the] plaintiff, and determining whether the petition invokes principles of substantive law upon which relief can be granted." Group Health Plan, Inc. v. State Bd. of Registration, 787 S.W.2d 745, 747 (Mo.App.E.D. 1990). We review an order granting a motion to dismiss de novo. Mottl v. Mo. Lawyer Trust Account Found., 133 S.W.3d 142, 145 (Mo.App.W.D. 2004) (citing Long v. Cross Reporting Serv., Inc., 103 S.W.3d 249, 252 (Mo.App.W.D. 2003)).
Quasi-Judicial Immunity and Official Immunity
In their motion to dismiss, the Board members argued they were entitled to both quasi-judicial immunity and official immunity. In granting the Board members' motion to dismiss, the trial court agreed that they were entitled to quasi-judicial immunity but did not address their claim for official immunity. We provide a brief discussion of both types of immunity for clarity.
Quasi-judicial immunity protects "[a]gency official responsible for deciding whether to initiate proceedings . . . from a suit for damages for their parts in that decision." Group Health Plan, Inc., 787 S.W.2d at 750. In Group Health Plan, Inc., the Eastern District held that "absolute immunity is accorded to government officials whose special functions require complete protection from suit and this immunity defeats the suit at the outset." 787 S.W.2d at 750 (citing Ray v. Pickett, 734 F.2d 370 (8th Cir. 1984)). At issue in Group Health was whether the State Board of Registration for Healing Arts, and its individual members; the Board of Pharmacy, and its individual members; and the Missouri Department of Health — Bureau of Narcotics and Dangerous Drugs, and its individual members were liable for violation of 42 U.S.C. Section 1983 for threatening to bring various actions against the plaintiffs who were various health organizations and providers. Id. at 747-48. In upholding the trial court's dismissal for failure to state a claim, the court explained that "[a]gency officials responsible for deciding whether to initiate proceedings are absolutely immune from a suit for damages for their parts in that decision." Id. at 750 (citing Butz v. Economou, 438 U.S. 478, 515-16 (1978)). This type of immunity was referred to as "quasi-judicial" immunity and protects agency officials from liability for actions taken in performing quasi-judicial functions. Id.
"'Official Immunity shields officials from liability for injuries arising out of their discretionary acts or omissions.'" State ex rel. Howenstine v. Roper, 155 S.W.3d 747, 752 (Mo. banc 2005) (quoting Charron v. Thompson, 939 S.W.2d 885, 886 (Mo. banc 1996)). A public officer is an individual "invested with some portion of the sovereign functions of the government, to be exercised by him [or her] for the benefit of the public." State ex rel. Eli Lilly Co. v. Gaertner, 619 S.W.2d 761, 764 (Mo.App.E.D. 1981) (citing State ex rel. Pickett v. Truman, 64 S.W.2d 105, 106 (Mo. banc 1933)). The sovereign's power that is "delegated to the officer must be exercised independently, with some continuity and without control of a superior power other than the law." Id. (citing Kirby v. Nolte, 164 S.W.2d 1, 8 (Mo. banc 1942)). In Gaertner, the plaintiffs brought a medical malpractice action against, among others, six physicians at a mental illness facility. 619 S.W.2d at 762. The Eastern District held that directors and superintendents of such facilities were entitled to official immunity, as they were "administrators of a state owned facility." Id. at 764. However, the physicians employed in the facility were not entitled to official immunity because their "duties do not involve any exercise of the sovereign's power." Id. They were "answerable to the facility's superintendent" and "[t]heir duties and authority [was] not set out in the statute as [were the] duties of the directors and superintendent but [were] such as the superintendent of the care facility determines." Id.
Discussion
Section 331.100.5 states that "[m]embers of the [Missouri Board of Chiropractic Examiners] shall not be personally liable either jointly or separately for any act or acts committed in the performance of their official duties as board members except gross negligence." A plain reading of this statute suggests that the Board members could be held liable if a jury agreed that they acted in a grossly negligent manner in investigating, prosecuting, and disciplining Dr. Edwards. However, the Board members argue that even if section 331.100.5 partially eliminates their official immunity that it does not remove the quasi-judicial immunity that it claims applies in this case. We agree. As stated above, quasi-judicial immunity protects "[a]gency official responsible for deciding whether to initiate proceedings . . . from a suit for damages for their parts in that decision." Group Health Plan, Inc., 787 S.W.2d at 750. Section 331.060 RSMo, authorizes the Board to file a complaint with the administrative hearing commission to revoke or suspend a license for any one of twenty enumerated reasons. Because the Board members' actions are prosecutorial in nature, they have immunity.
Dr. Edwards relies on a recent Missouri Supreme Court decision, State ex rel. Golden v. Crawford, 165 S.W.3d 147 (Mo. banc 2005), in which the court analyzed whether the legislature intended for the immunity provisions of section 190.307, RSMo, to supersede the common law immunity doctrines. In Golden, the plaintiff sued a 911 operator for negligently failing to record, pass, and verify accurate information from a 911 call. Id. at 148. The issue before the court was whether section 190.307 qualifies a 911 operator's protection under the official immunity and public duty doctrines. Id. Section 190.307 provides:
1. No public agency or public safety agency, nor any officer, agent or employee of any public agency, shall be liable for any civil damages as a result of any act or omission except willful and wanton misconduct or gross negligence, in connection with developing, adopting, operating or implementing any plan or system required by sections 190.300 to 190.340.
2. No person who gives emergency instructions through a system established pursuant to sections 190.300 to 190.340 to persons rendering services in an emergency at another location, nor any persons following such instructions in rendering such services, shall be liable for any civil damages as a result of issuing or following the instructions, unless issuing or following the instructions constitutes willful and wanton misconduct, or gross negligence.
Id. at 149. The court held that the express language of the section was clearly an intent by the legislature to supersede the common law doctrine of official immunity. Id. Therefore, it can be argued that the language found in section 331.100.5 ("members of the board shall not be personally liable . . . except gross negligence) supersedes the doctrine of official immunity. (Emphasis added). However, Golden did not address quasi-judicial immunity and, therefore, Dr. Edwards' reliance is misplaced. Group Health Plan, Inc. provides the controlling analysis in this case, as it dealt with quasi-judicial immunity.
Alternatively, Dr. Edwards argues that the Board members are not entitled to quasi-judicial immunity because they "went far beyond their quasi-judicial role of deciding to initiate and adjudicate an action against [his] license." He points to the facts that the Board members, among other things, aggressively solicited the initial complainant against him; failed to follow their own internal operating procedures; after the initial complaints were withdrawn, solicited a Board employee to serve in their place; withheld discoverable information; and ensured that derogatory comments about Dr. Edwards were published. We cannot agree with Dr. Edwards' contention. According to section 331.060.2, "[t]he board may cause a complaint to be filed with the administrative hearing commission . . . against any holder of any [chiropractic] certificate of registration or authority, permit or license" for any one of the twenty enumerated reasons. Quasi-judicial immunity is meant to provide absolute protection for this type of situation because only with complete protection can an agency assure that it will fully and freely perform its duties. Butz, 438 U.S. at 515-16. "[T]hose officials responsible for the decision to initiate or continue a proceeding subject to agency adjudication are entitled to absolute immunity from damages liability for their parts in that decision." Id. at 516. Stated another way, quasi-judicial immunity does not perish once the Board decides to initiate the proceeding. Point denied.
Dismissal of Stuenkel
In his second point on appeal, Dr. Edwards contends that the trial court erred in granting Stuenkel's motion to dismiss on the basis of official immunity because she did not satisfy the elements of such immunity, in that she was not a public officer acting in a discretionary capacity. He also claims that she was not entitled to immunity under the public duty doctrine because there was no claim for breach of a duty owed to the general public.
Discussion
Dr. Edwards brought an action against Stuenkel for malicious prosecution for signing a complaint against him, without first investigating the claim, when the original complainants dropped their complaint against him. "In order to establish liability in a malicious prosecution claim, a plaintiff must plead and prove six elements: `(1) commencement of an earlier suit against plaintiff; (2) instigation of the suit by defendant; (3) termination of the suit in plaintiff's favor; (4) lack of probable cause for the suit; (5) malice by defendant in instituting the suit; and (6) damage to plaintiff resulting from the suit.'" Brockman v. Regency Fin. Corp., 124 S.W.3d 42, 46-47 (Mo.App. W.D. 2004) (quoting Fust v. Francois, 913 S.W.2d 38, 43-44 (Mo.App. E.D. 1995)). "Because malicious prosecution suits countervail the public policy that the law should encourage citizens to aid in the uncovering of wrongdoing, the courts require strict compliance with the requisite elements." Teefey v. Cleaves, 73 S.W.3d 813, 816 (Mo.App.W.D. 2002) (citing Sanders v. Daniel Int'l Corp., 682 S.W.2d 803, 806 (Mo. banc 1984)). An inspection of Dr. Edwards' Petition for Damages illustrates that he failed to plead the fifth element. "A motion to dismiss for failure to state a cause of action is an assertion that, while taking all factual allegations as true, plaintiff's pleading are insufficient to establish a cause of action." Grewell v. State Farm Mut. Auto. Ins. Co., 102 S.W.3d 33, 35-36 (Mo. banc 2003) (citation omitted). Furthermore, "[t]he issue of whether a claim has been stated upon which relief can be granted is inherent in every appeal and may be raised, sua sponte, by the appellate court." Brock v. Blackwood, 143 S.W.3d 47, 55-56 (Mo.App.W.D. 2004) (citation omitted). At no time in his petition does Dr. Edwards claim that Stuenkel initiated the proceeding against him with a malicious intent. See Wetherill v. Hunt, 834 S.W.2d 199, 202 (Mo.App.W.D. 1991) (malice in this context is "defined as a wrongful act done intentionally without just cause of excuse.") (internal quotation marks and citation omitted). At most, Dr. Edwards claims that Stuenkel acted in a "grossly negligent" manner. Point denied.
Conclusion
Venue was proper in Cole County, Missouri, under the general venue statute because the defendants were members of a state board vested with discretionary decision making power. Additionally, the trial court correctly granted the Board members' motion to dismiss because each Board member is exempt from liability under the doctrine of quasi-judicial immunity. Finally, the case should be remanded with directions to dismiss the malicious prosecution claim against Stuenkel without prejudice.
Joseph M. Ellis, Presiding Judge, and Robert G. Ulrich, Judge, concur.