BARBARA BARTLETT, et al.,
Appellants,
v.
MISSOURI DEPARTMENT OF INSURANCE and JOHN M. HUFF,
Respondents. ) ) ) ) ) ) ) ) ) ) ) WD79411
OPINION FILED: November 29, 2016
Appeal from the Circuit Court of Cole County, Missouri The Honorable Jon E. Beetem, Judge
Before Division Two: Lisa White Hardwick, Presiding Judge, and Karen King Mitchell and Anthony Rex Gabbert, Judges
This case raises a question as to the procedural requirements for seeking relief in the form of a writ of mandamus under Rule 94. 1 Here, purported relators Barbara Bartlett and Shawn Hernandez, former employees of the Department of Insurance, appeal from the circuit court's grant of summary judgment in favor of the Department on their petition for a writ of mandamus, wherein Bartlett and Hernandez sought "payment . . . in lost wages and lost pension as a result of the 2001
1 All rule references are to the Missouri Supreme Court Rules (2016).
2 decision to no longer abide by [§ 374.115 2 ]," a statute they claimed mandated a certain level of compensation with which the Department refused to comply. Ultimately, the trial court granted the Department's motion for summary judgment, effectively denying the petition for writ of mandamus, and Relators appealed. Though seeking mandamus relief, Appellants utterly failed and refused to follow the procedural requirements of Rule 94 regarding mandamus, leaving this court without appellate jurisdiction. Accordingly, we dismiss this appeal. Background On November 9, 2012, Appellants Bartlett and Hernandez filed a "Petition for Writ of Mandamus – Class Action" in Jackson County, Missouri. Appellants, insurance examiners employed by the Department, claimed that beginning in 2001, the Department stopped paying them statutorily mandated salary increases. The petition sought class certification "to recover unpaid compensation in the form of lost wages and lost pension owed . . . [by] the Department of Insurance . . . from 2001 to the present" based on the language of § 374.115. 3 Upon receiving the petition, the Jackson County Court Administrator's Office sent Appellants a notice that their pleading could not be filed without further documents and information. The notice specifically inquired, "should this case be handled as a Writ or a regular Jackson County case? If handled as a Writ of Mandamus, please refer to the Missouri Court Rules." Appellants responded, "Please file the above styled case as a regular Jackson County Case and not as a Writ." The Jackson County Circuit Court complied with Appellants' request, appointed a special process server, and served the Department with a "Summons in Civil Case." Thereafter, the
2 All statutory citations are to the Revised Statutes of Missouri 2000, as updated through the most recent Cumulative Supplement. 3 No class certification hearing was ever held, and no class was ever certified. Thus, we do not address whether a petition for mandamus could ever be certified as a class action. The class action status of this case is not an issue on appeal.
3 Department sought a transfer of venue to Cole County and filed a motion to dismiss. In the Department's motion to dismiss, the Department argued—among other things—that "Plaintiffs fail[ed] to satisfy the elements for a writ of mandamus and fail[ed] to satisfy the procedural requirements for mandamus under Missouri Supreme Court Rule 94.03." More specifically, the Department argued that Appellants were improperly seeking mandamus to adjudicate their legal right to compensation, rather than to execute an existing right, and that they failed to follow the procedural requirements of Rule 94.03 insofar as they failed to submit either suggestions in support of their petition or exhibits essential to an understanding of the matters set forth therein. Thereafter, Appellants filed a "First Amended Petition for Writ of Mandamus," seeking to cure the procedural defects identified by the Department by attaching exhibits and accompanying suggestions in support. 4 The Department filed another motion to dismiss, this time directed at the First Amended Petition, again attacking Appellants' failure to satisfy the procedural requirements of Rule 94. The Department again argued that Appellants were seeking to establish a right, rather than simply to execute an existing one, and that the amended petition still failed to attach the relevant and necessary exhibits, as the exhibits included with the petition failed to establish any facts necessary to demonstrate that Appellants had an existing right to relief. The Jackson County Circuit Court granted the Department's motion to transfer venue to Cole County. In Cole County Circuit Court, Appellants filed a response to the Department's motion to dismiss, and the court held a hearing on the motion. Following the hearing, the Cole County Circuit Court entered an order denying the motion to dismiss; found "that the statute at
4 In filing the First Amended Petition, Appellants claimed that the amendment was permitted as a matter of right under Rule 55.33(a), "as no responsive pleading has been served." But, until a preliminary order is issued under Rule 94.04, no responsive pleading is required. Rule 94.05. While Rule 55.33 provides for amendments in cases where no responsive pleading has been served and where none is permitted, it does not address the situation where a responsive pleading is simply not required. In other words, the interplay between Rule 55.33, which applies to civil proceedings generally, and Rule 94, which applies to petitions for writ of mandamus, is not clear.
4 issue clearly sets forth the right to be enforced, thus making mandamus an appropriate remedy"; limited Appellants' claims to the five years preceding the petition based upon a statute of limitation; and directed the Department to file an answer. The Department filed a "General Objection and Answer," wherein it argued that "the Court was wholly without jurisdiction to direct Respondents to answer Petitioners' First Amended Petition for Writ of Mandamus" because "the denial of a motion to dismiss is not the operative prerequisite to investing the circuit court with the authority to direct Respondents to file an Answer." 5 "Rather," the Department argued, "in response to the proper showing accompanying a petition for writ of mandamus, the circuit court is empowered to issue but one type of order; a preliminary order in mandamus." (Citing Rule 94.04.) The Department argued that "[t]he Court's . . . Order does not determine that a preliminary writ should issue, it merely denies Respondents' motion to dismiss." The Department further argued that mandamus was inappropriate because Appellants were seeking to establish a legal right to compensation, rather than to execute an existing right. The parties then engaged in a period of discovery. Then, nearly two years after filing the initial petition in Jackson County, Appellants filed a "Motion for Leave to File Relator's [sic] Second Amended Writ," wherein Appellants sought to amend their petition again, this time to add another party. Not surprisingly, the Department objected, again arguing that Appellants had failed to comply with Rule 94 and were not entitled to writ relief. Appellants again tried to cure the procedural defects identified by the Department by filing an amended motion for leave to file their Second Amended Petition, wherein they attached exhibits and accompanying suggestions in
5 "[U]nless a trial court grants a preliminary order in mandamus, Rule 94 does not authorize the trial court to order the respondent to file an answer to the petition in mandamus." R.M.A. v. Blue Springs R-IV Sch. Dist., 477 S.W.3d 185, 188 n.6 (Mo. App. W.D. 2015).
5 support, as required by Rule 94. Again, the Department objected, and again it argued that Appellants failed to comply with Rule 94. The Department argued: This case is not a civil tort action and was brought over two years ago as a petition for writ of mandamus. A writ of mandamus . . . must show, on the face of the petition, a clear and unequivocal right to relief. The Court's April 2, 2014 order stated that Relators "bear the burden of proving facts which entitle them to relief under the statute." Further, Relators concede on the face of their Amended Motion that their prior attempts failed to support their claim for writ and failed to supply the required material under Rule 94.03. As such, the current incarnation of Relators' claim, brought more than two years after their initial filing, evidences the defects inherent in their claim.
The parties continued to engage in discovery, and on March 30, 2015, the parties filed competing motions for summary judgment, followed by suggestions in support and opposition, and replies, as well as various motions to strike. 6 Finally, on December 31, 2015—more than three years after the initial petition was filed—the court entered the following "Judgment": The Court finds that Relators have failed to establish a basis for mandamus in that they cannot establish what they should have been paid, except to the extent that it should be more. Mandamus requires a showing of a clearly established right. Independently, while as this Court has previously found that mandamus is the proper cause of action to compel a payment, the doctrine of sovereign immunity bars the action under the facts established. [7]
The Court sustains the Respondents' Motion for Summary Judgment.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Relators' request for a Writ of Mandamus is denied and judgment is entered in favor of Respondents. All other claims for relief, not expressly granted herein, are denied. Costs taxed to the Relators.
6 Though Rule 94.01 indicates that, "[i]n all particulars not provided for by the foregoing provisions, proceedings in mandamus shall be governed by and conform to the rules of civil procedure," we question whether summary judgment is an appropriate vehicle for resolving a petition for writ of mandamus. The two proceedings have vastly different purposes. "The purpose of summary judgment . . . is to identify cases (1) in which there is no genuine dispute as to the facts and (2) the facts as admitted show a legal right to judgment for the movant." ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 380 (Mo. banc 1993) (emphasis added). "Mandamus[, however,] may not be used to establish a legal right; it may only be used to compel performance of a right that already exists." Lemay Fire Prot. Dist. v. St. Louis Cty., 340 S.W.3d 292, 295 (Mo. App. E.D. 2011). "The writ's purpose is to execute, not to adjudicate." Id. 7 The parties argued below about whether sovereign immunity barred the petition, and they continue that argument on appeal. We do not determine that issue, however, because we lack appellate jurisdiction over this case due to the lack of a final, appealable judgment.
6
Appellants now appeal from the court's grant of summary judgment in favor of the Department, arguing that sovereign immunity did not apply and that they established a