State ex rel. Brad Halsey, Relator v. The Honorable Jennifer M. Phillips , 576 S.W.3d 177 ( 2019 )

SUPREME COURT OF MISSOURI
en banc
STATE ex rel. BRAD HALSEY, ) Opinion issued June 25, 2019
)
Relator, )
)
v. ) No. SC97288
)
THE HONORABLE JENNIFER M. PHILLIPS, )
)
Respondent. )
ORIGINAL PROCEEDING IN PROHIBITION
Brad Halsey (“Halsey”) petitions this Court for a writ of prohibition directing the
Honorable Jennifer M. Phillips (“Respondent”) to dismiss Jennifer Dachenhausen’s
(“Dachenhausen”) claims against him for assault, battery, intentional infliction of
emotional distress, and negligent infliction of emotional distress. Because
Dachenhausen’s Amended Petition demonstrates her assault and battery claims are time-
barred but her emotional distress counts properly allege claims independent from
traditional common law actions, the preliminary writ is made permanent in part and
quashed in part.
BACKGROUND
On May 9, 2018, Dachenhausen filed suit against Halsey in Jackson County
Circuit Court for assault, battery, intentional infliction of emotional distress, and
negligent 1 infliction of emotional distress. As alleged by Dachenhausen in her Amended
Petition, Dachenhausen worked as a Lead Analyst at the City of Independence Police
Department, and Halsey, the Deputy Chief of Police, was her supervisor. In 2012,
Halsey asked Dachenhausen to send him naked pictures of herself, and Halsey sent her
pictures of a naked woman he said was his wife. On May 17, 2013, Halsey placed his
hands on Dachenhausen’s buttocks and pulled her into his erect penis. Dachenhausen
fled Halsey’s presence immediately after this incident. Dachenhausen further alleges
Halsey placed his erect penis near her face while at work on an unspecified date. As a
result of Halsey’s conduct, Dachenhausen resigned from her position with the City of
Independence. While the conduct described in her Amended Petition was alleged to have
occurred in 2012 and 2013, Dachenhausen alleges she did not fully appreciate the
psychological impact of Halsey’s actions until the fall of 2017 when the Me Too
movement 2 became prominent.
1
Dachenhausen originally pleaded only assault, battery, and intentional infliction of emotional
distress. Her count of negligent infliction of emotional distress was first included in her
Amended Petition, filed May 28, 2018. However, because this count alleges the same conduct as
her intentional infliction of emotional distress count, it relates back under Rule 55.33(c).
2
For background about the Me Too movement, see Melissa Murray, Consequential Sex:
#MeToo, Masterpiece Cakeshop, and Private Sexual Regulation, 113 Nw. U. L. Rev. 825, 866-
68 (2019), and Elizabeth C. Tippett, The Legal Implications of the MeToo Movement, 103 Minn.
L. Rev. 229, 230-34 (2018).
2
In lieu of an answer, Halsey filed a motion to dismiss, arguing Dachenhausen’s
claims were time-barred. Respondent overruled Halsey’s motion to dismiss. Having
been denied relief in the court of appeals, Halsey petitioned this Court for a writ of
prohibition. This Court issued a preliminary writ of prohibition, which it now makes
permanent in part and quashes in part.
DISCUSSION
This Court has the authority to issue and determine original remedial writs. Mo.
Const. art. V, § 4.1. “Prohibition is a discretionary writ that only issues to prevent an
abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of
extrajurisdictional power.” State ex rel. Church & Dwight Co., Inc. v. Collins, 543
S.W.3d 22, 25 (Mo. banc 2018) (quotation omitted). “A writ of prohibition is the proper
remedy to prevent a lower court from proceeding on a claim barred by the statute of
limitations.” Id. at 26 (quotation and alteration omitted).
Halsey argues a writ of prohibition is warranted on the grounds that:
(1) Dachenhausen’s suit is time-barred because, under section 516.140, 3 the statute of
limitations for assault and battery claims is two years and Dachenhausen filed suit almost
five years after the conduct was alleged to have occurred; and (2) the conduct
Dachenhausen alleged to support her claims for intentional and negligent infliction of
emotional distress is indistinguishable from traditional common law torts and, therefore,
her claims for emotional distress are time-barred because they are merely a repackaging
3
All statutory references are to RSMo 2016, unless otherwise indicated.
3
of her assault and battery claims. Accordingly, Halsey contends the circuit court had no
authority other than to sustain his motion to dismiss.
“A motion to dismiss for failure to state a cause of action is solely a test of the
adequacy of the plaintiff’s petition.” City of Lake Saint Louis v. City of O’Fallon, 324
S.W.3d 756, 759 (Mo. banc 2010) (quotation and alteration omitted). “A court reviews
the petition in an almost academic manner, to determine if the facts alleged meet the
elements of a recognized cause of action ….” Id. (quotation omitted). “When an
affirmative defense is asserted, such as a statute of limitation, the petition may not be
dismissed unless it clearly establishes on its face and without exception that it is barred.”
Sheehan v. Sheehan, 901 S.W.2d 57, 59 (Mo. banc 1995) (quotation omitted).
Accordingly, only in the rare case in which the face of a petition demonstrates a claim is
time-barred should a court sustain a motion to dismiss on the ground the statute of
limitations has run.
I. Assault and Battery Claims
In response to Halsey’s argument that the circuit court had no authority other than
to dismiss her assault and battery claims as time-barred, Dachenhausen argues her
damages were not reasonably capable of ascertainment until the Me Too movement
became prominent in the fall of 2017. Only then, she claims, was she – or any reasonable
person – able to appreciate fully the psychological impact of Halsey’s alleged conduct.
Dachenhausen’s pleadings, however, wholly refute this argument. Damages resulting
from all the conduct Dachenhausen alleges were reasonably ascertainable at the time the
4
conduct occurred. Accordingly, Dachenhausen’s assault and battery claims are time-
barred.
Section 516.140 provides a two-year statute of limitations for assault and battery
claims. § 516.140. “A cause of action for battery or assault is deemed to accrue not
when the wrong is done, but when the damage resulting therefrom is sustained and is
capable of ascertainment.” Sheehan, 901 S.W.2d at 58 (quotation and alteration omitted).
“[T]he capable of ascertainment test is an objective one” determined at the point in time
“when a reasonable person would have been put on notice that an injury and substantial
damages may have occurred and would have undertaken to ascertain the extent of the
damages.” Powel v. Chaminade Coll. Preparatory, Inc., 197 S.W.3d 576, 584 (Mo. banc
2006). “At that point, the damages would be sustained and capable of ascertainment as
an objective matter.” Id. at 584-85.
Dachenhausen’s Amended Petition alleges Halsey committed assault and battery
when he grabbed her buttocks and pulled her into his erect penis on May 17, 2013. When
this offensive touching occurred, a reasonable person would have been put on notice that
injury or damages may have occurred and undertaken to determine their extent.
Dachenhausen alleges she feared an offensive touching, fled Halsey’s presence, and
resigned due to Halsey’s conduct and fear it would continue. Again, these allegations
demonstrate a reasonable person would have been on notice that an injury and substantial
damages may have occurred and would have undertaken to determine their extent.
Though she argues the Me Too movement heightened awareness of such deplorable
conduct and its consequences, Dachenhausen’s Amended Petition alleges facts that
5
demonstrate damages had been sustained and were objectively capable of ascertainment
when the threatened and actual offensive touching occurred in 2013. Accordingly, the
face of Dachenhausen’s Amended Petition demonstrates the statute of limitations has run
on her assault and battery claims. The writ of prohibition is made permanent with respect
to those claims. 4
II. Negligent and Intentional Infliction of Emotional Distress
Halsey argues Dachenhausen’s claims for negligent and intentional infliction of
emotional distress do not state a cause of action independent from a traditional tort.
[W]here [a defendant’s] conduct amounts to the commission of one of the
traditional torts, such as battery, and the conduct was not intended only to
cause extreme emotional distress to the victim, the tort of intentional
emotional distress will not lie, and recovery must be had under the
appropriate traditional common-law action.
K.G., 918 S.W.2d at 799.
The allegations of Dachenhausen’s Amended Petition, which are the same for both
emotional distress claims, have a factual and legal basis independent from that of her
assault and battery claims. Specifically, Dachenhausen alleges Halsey asked her to send
him naked photographs of herself, sent her naked photographs of a woman he said was
his wife, and placed his erect penis near her face while at work. Notably, Dachenhausen
does not allege that she was put in apprehension of an offensive touching or that Halsey
intended to complete an offense touching when he placed his erect penis near her face;
4
Dachenhausen does not claim the statute of limitations was tolled or extended in her case.
See, e.g., K.G. v. R.T.R., 918 S.W.2d 795, 798 (Mo. banc 1996) (citing § 516.170) (construing
the statute of limitations for sexual battery involving a minor); Powel, 197 S.W.3d at 580-84
6
therefore, these allegations are not merely repackaged assault or battery claims. Cf.
Devitre v. Orthopedic Ctr. of Saint Louis, LLC, 349 S.W.3d 327, 334-35 (Mo. banc
2011). 5 Rather, this action was intended “only to cause extreme emotional distress” to
Dachenhausen. K.G., 918 S.W.2d at 799.
Moreover, a jury could reasonably find the facts Dachenhausen alleges are “so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Gibson v. Brewer, 952 S.W.2d 239, 249 (Mo. banc 1997) (quotation
omitted). Accordingly, Dachenhausen’s Amended Petition states a claim of emotional
distress that is independent from traditional common law torts such as assault or battery.
See R.M.A. v. Blue Springs R-IV Sch. Dist., 568 S.W.3d 420, 424 (Mo. banc 2019)
(“When considering whether a petition fails to state a claim upon which relief can be
granted, this Court must accept all properly pleaded facts as true, giving the pleadings
their broadest intendment, and construe all allegations favorably to the pleader …. [T]his
Court reviews the petition to determine if the facts alleged meet the elements of a
recognized cause of action ….” (quotations omitted)). Accordingly, the circuit court
properly refused to dismiss Dachenhausen’s negligent and intentional infliction of
(construing the statute of limitations for a sexual battery when the victim had repressed the
memory of the battery).
5
“To recover damages for a battery, the plaintiff must plead and prove an intended, offensive
bodily contact with another person.” Devitre, 349 S.W.3d at 334 (quotation omitted). “To plead
an assault, the [plaintiff] must allege: (1) defendant’s intent to cause bodily harm or offensive
contact, or apprehension of either; (2) conduct of the defendant indicating such intent, and
(3) apprehension of bodily harm or offensive contact on the part of the plaintiff caused by
defendant’s conduct.” Id. at 335 (quotation omitted).
7
emotional distress claims on the ground they were indistinguishable from common law
torts such as her time-barred assault and battery claims. 6
Finally, this Court cannot determine from the face of her Amended Petition that all
of Dachenhausen’s negligent or intentional infliction of emotional distress claims are
time-barred. The statute of limitations for emotional distress claims is five years.
§ 516.120(4). Halsey would only be entitled to relief by way of extraordinary writ in this
case if Dachenhausen’s Amended Petition affirmatively showed all of the conduct giving
rise to her negligent or intentional infliction of emotional distress claims occurred before
May 9, 2013. It does not.
As with the injury and damages stemming from the alleged conduct forming the
basis for Dachenhausen’s assault and battery claims, Dachenhausen’s allegation Halsey
placed his erect penis near her face at work would have put a reasonable person on notice
at that time that a negligent or intentional infliction of emotional distress may have
occurred such that a reasonable person would have undertaken to ascertain the extent of
her damages. See Powel, 197 S.W.3d at 584. But Dachenhausen’s Amended Petition
does not state precisely when this conduct occurred. Because this alleged conduct may
well have occurred on or after May 9, 2013 (and, therefore, within five years of her filing
6
Halsey also argues Respondent should have dismissed the negligent infliction of emotional
distress count for failure to state a claim because Dachenhausen failed to allege conduct that was
negligent rather than intentional or reckless. Dachenhausen’s allegations are sufficient, however,
because a jury could reasonably find either that Halsey engaged in conduct to intentionally or
recklessly cause her severe emotional distress or that Halsey should have realized his conduct
involved an unreasonable risk of causing her severe emotional distress. See Gibson, 952 S.W.2d
at 248-49. Accordingly, Dachenhausen has stated a claim for negligent infliction of emotional
distress sufficient to survive a motion to dismiss. Cf. R.M.A., 568 S.W.3d at 424.
8
suit), the Court cannot say the Amended Petition “clearly establishes on its face and
without exception that it is barred.” Sheehan, 901 S.W.2d at 59 (quotation omitted);
accord City of Lake Saint Louis, 324 S.W.3d at 764. 7
CONCLUSION
For the reasons set forth above, the preliminary writ is made permanent in part and
quashed in part, and the circuit court is to proceed in a manner not inconsistent with this
opinion.
_____________________________
Paul C. Wilson, Judge
Fischer, C.J., Draper, Russell, Breckenridge, and Stith, JJ., and Scott, Sp.J., concur.
Powell, J., not participating.
7
Clearly, some of Halsey’s alleged conduct occurred more than five years prior to the date on
which Dachenhausen filed her suit, e.g., the sending of sexually suggestive and offensive texts
was alleged to have occurred in 2012. Nevertheless, Dachenhausen’s negligent or intentional
infliction of emotional distress claims survive Halsey’s motion to dismiss because at least some
of the conduct alleged in support of those claims is undated and (if given the most favorable
reading, as required by R.M.A.) must be considered for purposes of Halsey’s motion to dismiss to
have occurred within the limitations period. Consequently, Halsey is not entitled to relief by
way of extraordinary writ. Nothing precludes him from filing a motion for a more definite
statement pursuant to Rule 55.27(d), however, or raising his statute of limitations arguments
again in a properly supported motion for summary judgment pursuant to Rule 74.04.
9