Missouri Case Law

EDWARDS v. GERSTEIN, WD 66678 (Mo.App.W.D. 12-26-2006) DR.
GARY EDWARDS, Appellant, v. LAWRENCE M. GERSTEIN, et al,
Respondents. No. WD 66678. Missouri Court of Appeals,
Western District. December 26, 2006.

Appeal from the Circuit Court of Cole County, The Honorable
Thomas J. Brown III, Judge.

RONALD R. HOLLIGER, 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.[fn1]
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[fn2] 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.

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.

[fn1] 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.

[fn2] 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.