State ex rel: Amanda Pryor v. Douglas Nelson and Chris Koster , 2014 Mo. App. LEXIS 1379 ( 2014 )


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  •                In the Missouri Court of Appeals
    Western District
    STATE ex rel: AMANDA PRYOR,         )
    Appellant, )
    v.                                  )
    )                WD77494
    DOUGLAS NELSON and CHRIS            )
    KOSTER,                             )                FILED:   December 9, 2014
    Respondents. )
    APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY
    THE HONORABLE PATRICIA S. JOYCE, JUDGE
    BEFORE DIVISION ONE: THOMAS H. NEWTON, PRESIDING JUDGE,
    LISA WHITE HARDWICK AND ANTHONY REX GABBERT, JUDGES
    Amanda Pryor, as next friend for the four minor children of Zachary Snyder,
    appeals the circuit court's judgment dismissing her petition for a writ of mandamus
    against Douglas E. Nelson, the Commissioner of the Office of Administration of the
    State of Missouri, and Chris Koster, the Attorney General of the State of Missouri
    (collectively, "Respondents"). Pryor sought the writ to compel Respondents to
    issue checks from the State Legal Expense Fund ("the Fund") to satisfy a judgment
    entered by the United States District Court for the Eastern District of Missouri
    ("federal court") against a Department of Corrections employee for Snyder's
    wrongful death. On appeal, Pryor contends she stated a claim for mandamus relief.
    For reasons explained herein, we affirm.
    FACTUAL AND PROCEDURAL HISTORY
    Steven Julian was a Department of Corrections employee with the Fugitive
    Apprehension Unit when he attempted to apprehend Snyder, a parolee who was
    subject to electronic monitoring and had missed a curfew. In the course of
    returning Snyder to custody, Julian shot Snyder, who was unarmed, in the back,
    killing him.
    Pryor, as next friend for Snyder's minor children, filed suit against Julian in
    federal court. The Attorney General provided Julian's defense, and Julian
    cooperated in his defense. The jury returned a verdict of $1 million in favor of the
    minor children and against Julian. The clerk of the court memorialized the jury's
    verdict in a judgment on August 15, 2012. After ruling on the parties' post-trial
    motions, the federal court entered a judgment on the verdict on August 8, 2013.
    In the judgment, the federal court apportioned the $1 million verdict between the
    minor children and ordered the children's attorney's fees paid out of the judgment.
    On August 13, 2013, Pryor made demand on Respondents, seeking the issuance of
    checks from the Fund to satisfy the judgment.
    When Respondents failed to pay the judgment within ten days, Pryor filed a
    petition for a writ of mandamus in the Cole County Circuit Court. In her petition,
    Pryor alleged that, because the Attorney General had tendered a defense on behalf
    of Julian, a State employee, for conduct arising out of and performed in connection
    2
    with his duties, the State was required under Section 105.711, RSMo Cum. Supp.
    2013,1 to satisfy the verdict with money from the Fund. Pryor requested a
    preliminary order in mandamus commanding Respondents to file an answer and a
    judgment compelling Respondents "to complete the ministerial act of issuing
    payments against the [Fund]" on behalf of the minor children to satisfy the federal
    court's judgment.
    The court entered a preliminary order in mandamus and directed
    Respondents to file a responsive pleading to Pryor's petition. Respondents filed an
    answer in which they asserted, among other things, that Julian shot and killed
    Snyder only after he "perceived a sudden, threatening motion from Snyder" and
    that the Attorney General had filed an appeal from the federal court's judgment.
    Respondents also filed a motion to dismiss or, in the alternative, for
    judgment on the pleadings. They asserted that the petition failed to state a claim
    for mandamus relief because under Section 105.711.2, money in the Fund is
    available to pay only amounts required by "any final judgment." Respondents
    noted that the petition alleged only that the federal court entered a "judgment" and
    ignored the fact that that the Attorney General had filed an appeal from that
    judgment. Alternatively, Respondents argued that they were entitled to judgment
    on the pleadings because they alleged in their answer that the Attorney General
    had appealed the federal court's judgment, thereby demonstrating that the
    judgment was not final.
    1
    All statutory references are to the Revised Statutes of Missouri 2000, as updated by the 2013
    Cumulative Supplement.
    3
    In response, Pryor asserted that the finality of the federal court's judgment
    was not affected by the filing of a notice of appeal. Pryor argued that, in the
    absence of an automatic stay or proof of the posting of a supersedeas bond, she
    was entitled to execute on the judgment by having Respondents issue checks from
    the Fund.2
    On April 4, 2014, the circuit court entered its judgment dismissing Pryor's
    petition for failure to state a claim. Pryor appeals.3
    STANDARD OF REVIEW
    Appellate review of a dismissal for failure to state a claim is de novo. Lynch
    v. Lynch, 
    260 S.W.3d 834
    , 836 (Mo. banc 2008). We will "affirm the dismissal if
    it can be sustained on any ground supported by the motion to dismiss." Beck v.
    Fleming, 
    165 S.W.3d 156
    , 158 (Mo. banc 2005) (footnote omitted). We accept
    the allegations in the petition as true, and "no attempt is made to weigh any facts
    alleged as to whether they are credible or persuasive." Keveney v. Mo. Military
    Acad., 
    304 S.W.3d 98
    , 101 (Mo. banc 2010). Indeed, we construe the petition
    liberally and accord it "'all reasonable inferences deducible from the facts stated.'"
    Lakeridge Enters., Inc. v. Knox, 
    311 S.W.3d 268
    , 271 (Mo. App. 2010) (citation
    2
    The federal court did, in fact, grant a stay. In a letter brief submitted after oral argument,
    Respondents provided this court, at our request, a copy of the federal court's order, entered
    February 20, 2014, granting Julian's motion to stay execution of the judgment pending resolution of
    his appeal and denying the minor children's motion for a supersedeas bond. The State does not
    argue for affirmance based on the federal court's stay of execution.
    3
    Although generally a party who is denied relief by extraordinary writ in a lower court must file an
    original application for relief in a higher court, "[a]n appeal will lie from the denial of a writ petition
    when a lower court has issued a preliminary order in mandamus but then denies a permanent writ."
    U.S. Dep't of Veterans Affairs v. Boresi, 
    396 S.W.3d 356
    , 358 (Mo. banc 2013).
    4
    omitted). "The petition is reviewed in an almost academic manner, to determine if
    the facts alleged meet the elements of a recognized cause of action or of a cause
    that might be adopted in that case." 
    Keveney, 304 S.W.3d at 101
    .
    ANALYSIS
    In her sole point on appeal, Pryor contends the court erred in dismissing her
    petition for a writ of mandamus compelling Respondents to issue checks from the
    Fund to satisfy the federal court's judgment. "Mandamus will lie only when there
    is a clear, unequivocal, specific right to be enforced." State ex rel. Mo. Growth
    Ass'n v. State Tax Comm'n, 
    998 S.W.2d 786
    , 788 (Mo. banc 1999). This is
    because the purpose of mandamus "is to execute, not adjudicate." 
    Id. If the
    right
    is doubtful, mandamus is not the appropriate remedy. Jones v. Jackson Co. Circuit
    Court, 
    162 S.W.3d 53
    , 58 (Mo. App. 2005).
    In determining "whether the right to mandamus is clearly established and
    presently existing," we examine the statute under which the petitioner asserts the
    right. Jones v. Carnahan, 
    965 S.W.2d 209
    , 213 (Mo. App. 1998). In this case,
    Pryor asserts her claim under Section 105.711.2. This statute provides, in
    pertinent part, that "[m]oneys in the state legal expense fund shall be available for
    the payment of any claim or any amount required by any final judgment rendered
    by a court of competent jurisdiction" against an employee of the State or a State
    agency for conduct arising out of and performed in connection with the employee's
    official duties. § 105.711.2(2).
    5
    The issue in this case is whether Pryor's petition alleged facts showing that
    the federal court's judgment was a "final judgment" requiring payment by the
    Fund. Pryor argues that, because the judgment was final for purposes of appeal, it
    was a "final judgment" for all purposes, including the application of Section
    105.711.2.
    A judgment, however, "may be characterized as final in one sense or for
    some purposes and not in another sense or for other purposes." State ex rel.
    Berbiglia, Inc. v. Randall, 
    423 S.W.2d 765
    , 768 (Mo. banc 1968). In Berbiglia, the
    Supreme Court explained that, while the finality of a judgment most often arises in
    the context of its appealability, a judgment that is final for purposes of appeal is
    not necessarily final in other contexts:
    For example, a judgment or decree final for the purposes of appeal is
    most certainly not final in the sense that it is conclusive on the parties
    until the losing party has failed to appeal within the time allowed by
    law, or, having appealed, until the appeal is determined; and, although
    it is not final in that sense because an appeal is pending, yet during
    that period it may be final in the sense that the court from which the
    appeal was taken has exhausted its authority and is without
    jurisdiction to change, vacate or modify the judgment, or to enter
    another judgment.
    
    Id. Appealability was
    not at issue in Berbiglia, nor is it at issue in this case. The
    question in Berbiglia was whether a judgment was final in the sense that the circuit
    court entering the judgment no longer had jurisdiction to change, vacate, or modify
    the judgment, or to enter another judgment. 
    Id. at 769.
    That is not the issue here,
    as we are not concerned with the extent of the federal court's continuing
    jurisdiction over its judgment.
    6
    Additionally, the finality of a judgment can arise in the context of res judicata
    or collateral estoppel, the application of which requires a "final judgment" on the
    merits. Robin Farms, Inc. v. Beeler, 
    991 S.W.2d 182
    , 186 (Mo. App. 1999)
    (holding that, when an appellate court vacates a lower court's judgment, the lower
    court's judgment is no longer considered a "final judgment" for purposes of claim
    or issue preclusion). The purpose of res judicata and collateral estoppel is to
    prevent the relitigation of claims and issues unambiguously decided in a prior
    proceeding. Gamble v. Browning, 
    379 S.W.3d 194
    , 198 (Mo. App. 2012).
    Because relitigation is not a concern of Section 105.711, a judgment considered
    final for preclusion purposes is not necessarily a "final judgment" mandating
    payment from the Fund.
    The finality of a judgment also can arise in a contractual context, such as the
    obligation of a liability insurer to pay a judgment under an insurance policy. This
    court has held that, where an insurance policy requires a "final judgment" of the
    insured's liability before payment, the judgment is not final until after the appeal
    period has expired or, if an appeal is taken, until after the appeal is determined.
    Joyce v. Central Sur. & Ins. Corp., 
    321 S.W.2d 272
    , 278-79 (Mo. App. 1959).
    We recognize that the Fund is not insurance, Kesterson v. Wallut, 
    157 S.W.3d 675
    , 684 (Mo. App. 2004); however, the Fund's payment of judgment on behalf of
    a State employee is similar to an insurance company's payment of a judgment on
    behalf of its insured.
    7
    To determine what constitutes a "final judgment" for purposes of requiring
    payment from the Fund under Section 105.711.2, we must apply the rules of
    statutory interpretation. "The primary rule of statutory interpretation is to give
    effect to legislative intent as reflected in the plain language of the statute." P.L.S.
    ex rel. Shelton v. Koster, 
    360 S.W.3d 805
    , 808 (Mo. App. 2011). We also
    determine the legislature's intent "by considering the entire act and its purposes,
    and by seeking to avoid unjust, absurd, unreasonable, confiscatory or oppressive
    results." State ex rel. Killingsworth v. George, 
    168 S.W.3d 621
    , 623 (Mo. App.
    2005).
    While the plain language of Section 105.711.2 does not indicate precisely
    what the legislature intended by the term "final judgment," we can ascertain the
    legislature's intent from the act as a whole and its purposes. In Dixon v. Holden,
    
    923 S.W.2d 370
    , 381 (Mo. App. 1996), this court noted that there are three
    purposes of the act that created the Fund. These purposes are: (1) to provide "for
    a legal defense of employees covered by the Fund," Section 105.716; (2) to
    provide "for the purchase of insurance for the State of Missouri, its agencies,
    officers, and employees, Section 105.721; and (3) to provide "for the payment of
    judgments against various employees and the State," Section 105.711. 
    Dixon, 923 S.W.2d at 381
    . "All of these statutory purposes seem to flow from one
    policy--to promote governmental efficiency and protect state business by protecting
    employees." 
    Id. 8 In
    light of the act's policy of promoting governmental efficiency and
    protecting state business by protecting employees, we do not believe that the
    August 15, 2012 judgment, entered by the federal court clerk immediately
    following the jury's verdict, was final for purposes of requiring payment from the
    Fund. If such a judgment were considered final, then a plaintiff could collect from
    the Fund even while a motion for new trial or a renewed motion for judgment as a
    matter of law was pending. Allowing collection from the Fund while post-trial
    motions that could change the result of the trial are pending would be contrary to
    governmental efficiency.
    Similarly, we do not believe that the August 8, 2013 judgment, entered by
    the federal court after it ruled on the post-trial motions, was final for purposes of
    mandating payment from the Fund. The Attorney General appealed from that
    judgment, and that appeal is pending. If plaintiffs were allowed to collect before
    determination of the appeal and the appeal reversed the judgment, then there
    would no longer be a final judgment and the State would have to seek recoupment
    of the funds. Collection by the State could be problematic depending upon what
    plaintiffs have done with the money in the interim. Requiring the State to engage
    in collection efforts would divert attention away from and interfere with the
    Attorney General's defense of the State's interests and the employee's interests. It
    would also be contrary to governmental efficiency.
    Moreover, a judgment reversed on appeal could be remanded for further
    proceedings. There could be a new trial, a new judgment, and a new appeal. This
    9
    could lead to a new round of payment, reversal, and possible recoupment. Such a
    result would be absurd; consequently, we must reject this interpretation.
    
    Killingsworth, 168 S.W.3d at 623
    .
    Requiring the State to pay a judgment from the Fund while the judgment is
    still subject to being vacated, reversed, or modified on appeal is not efficient and
    does not protect State business. The only interpretation of the term "final
    judgment" that is consistent with the purposes and policies of the act that created
    the Fund is one of the options discussed in Berbiglia: a judgment that is conclusive
    on the parties because the losing party has failed to appeal within the time allowed
    or has appealed and the appeal has been determined. See 
    Berbiglia, 423 S.W.2d at 768
    . This interpretation ensures that payment from the Fund will be made only
    once in the case and that the State will not have to expend time and resources for
    recoupment. Hence, we find that the legislature intended that the term "final
    judgment," as used in Section 105.711.2, refers to a conclusive determination of
    the liability of the State employee, with no further appeals or review possible.4
    In this case, Pryor's petition alleged only that the clerk of the court entered
    judgment on the jury's verdict and that, later, the court entered a judgment
    apportioning the verdict between the minor children and their counsel. She did not
    allege any facts showing that the judgment was a "final judgment" within the
    4
    This interpretation is consistent with State ex rel. Cravens v. Nixon, 
    234 S.W.3d 442
    (Mo. App.
    2007), another case involving a mandamus action to collect a federal court judgment from the
    Fund. Although the existence of a "final judgment" for purposes of Fund liability was not at issue,
    this court specifically noted that the underlying federal court judgment against the State employee
    had not been appealed. 
    Id. at 445.
    10
    meaning of Section 105.711.2, that is, a conclusive determination of Julian's
    liability with no further appeals or review possible. Therefore, Pryor failed to allege
    facts demonstrating a clear, unequivocal, specific, and presently existing right to
    payment from the Fund. The circuit court properly dismissed her petition for writ
    of mandamus.
    CONCLUSION
    The judgment is affirmed.
    ____________________________________
    LISA WHITE HARDWICK, JUDGE
    ALL CONCUR.
    11