Edwards v. Gerstein , 237 S.W.3d 580 ( 2007 )

RICHARD B. TEITELMAN, Judge.

Dr. Gary Edwards filed suit in Jackson County alleging that several members of the Missouri Board of Chiropractic Examiners acted with gross negligence during the Board’s disciplinary proceedings against him. Dr. Edwards’ petition also alleged that a Board employee engaged in malicious prosecution during her investigation of the claims against Dr. Edwards. The Board members and the employee filed a motion to dismiss, or in the alternative to transfer the case to the circuit court of Cole County. The case was transferred to Cole County. The circuit court dismissed Dr. Edwards’ suit after concluding that the Board members were entitled to quasi-judicjal immunity and that the Board employee was immune from suit under the official immunity and public duty doctrines.

Dr. Edwards appeals. He asserts that neither the Board members nor the Board employee are immune from suit and, further, that venue is proper in Jackson County.

The trial court correctly determined that venue was proper in Cole County. The judgment dismissing Dr. Edwards’ claims against the Board members is reversed. The judgment dismissing Dr. Edwards’ malicious prosecution claims against the Board employee is reversed, and the case is remanded with directions to dismiss those claims without prejudice.

I. Dismissal of the Board members

Dr. Edwards contends that the circuit court erred in granting the Board members’ motion to dismiss on the basis of common law quasi-judicial immunity. He argues that section 331.100.5¹ supersedes quasi-judicial immunity by expressly allowing the members of the Missouri Board of Chiropractic Examiners to be held liable for gross negligence.

The primary rule of statutory construction is to “ascertain the intent of the legislature from the language used, to give effect to the intent if possible, and to consider the words in their plain and ordinary meaning.” Nelson v. Crane, 187 S.W.3d 868, 869-870 (Mo. banc 2006). When interpreting statutes, courts do not presume that the legislature has enacted a meaningless provision. State v. Winsor, 110 S.W.3d 882, 887 (Mo.App. W.D.2003).

Section 331.100.5 provides that “Members 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.” (Emphasis added). The plain language of the statute establishes that the Board members are generally immune from suit, with the qualification that immunity is inapplicable if a Board member is grossly negligent in performing his or her duties. The Board members’ argument that they have absolute immunity renders meaningless the phrase “except for gross negligence.” Therefore, in order to give full effect to the plain language of section 331.100.5, the statute must be interpreted as superseding the Board’s common law immunity if Board members engage in gross negligence in the performance of their official duties.

The foregoing analysis is consistent with State ex rel. Golden v. Crawford, 165 S.W.3d 147 (Mo. banc 2005). In Golden, a wrongful death action was filed against several defendants, including a 911 dispatcher. The issue in the case was whether section 190.307 superseded common law official immunity. The statute eliminated civil liability for employees of an emergency system “for any civil damages as a result of any act or omission except willful and wanton misconduct or gross negligence .... ” Because “[i]t is clear from the express language in this section that the legislature intended for this statutory immunity to supersede the common law official immunity doctrine for the enumerated individuals and agencies,” this Court held that “section 190.307 provides the shielded entities with a qualified immunity allowing civil liability only in instances where gross negligence can be established.” Id. at 148.

Like the statute at issue in Golden, the statute at issue in this case supersedes absolute common law immunities and establishes qualified statutory immunity from liability except in cases of gross negligence. Although Golden dealt only with official immunity and this case involves quasi-judicial immunity, the distinction is without difference because both are common law immunities subject to legislative modification. The circuit court erred in sustaining the Board’s motion to dismiss.

II. Dismissal of the Board employee

In Counts II and III of his petition, Dr. Edwards alleged that the Board employee engaged in malicious prosecution by not conducting and adequate investigation of the claims against Dr. Edwards. Dr. Edwards contends that the trial court erred in sustaining the Board employee’s motion to dismiss on the basis of official immunity and the public duty doctrine. As discussed below, there is no need to address the official immunity or the public duty doctrine issue, because Dr. Edwards failed to adequately plead a cause of action against the Board employee.²

To state a claim for malicious prosecution, the 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 plaintiffs 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. State ex rel. Police Retirement System of St. Louis v. Mummert, 875 S.W.2d 553, 555 (Mo. banc 1994). “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.” Sanders v. Daniel Int’l Corp., 682 S.W.2d 803, 806 (Mo. banc 1984). Dr. Edwards failed to allege in his petition that the Board employee initiated or conducted her investigation with malicious intent. Therefore, Dr. Edwards’ petition fails to state a claim for malicious prosecution. The circuit court did not err in dismissing Dr. Edwards’ malicious prosecution claims against the Board employee.

III. Venue

Dr. Edwards argues that the case should not have been transferred to Cole County because venue was proper in Jackson County.

Venue is determined solely by statute. State ex rel. BJC Health System v. Neill, 121 S.W.3d 528, 529 (Mo. banc 2003). At the time suit was filed, section 508.010, which is the general venue statute for Missouri, provided that:

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 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....

Dr. Edwards asserts that venue is proper in Jackson County under section 508.010(2) because one of the Board members resided in Jackson County. In support of this argument, Dr. Edwards relies State ex rel. Missouri Department of Natural Resources v. Roper, 824 S.W.2d 901, 903 (Mo. banc 1992). In Roper, the plaintiff was injured in a collision with a truck owned by the Missouri Department of Natural Resources (DNR). The truck driver, an employee of DNR, resided in Boone County. The plaintiff filed suit in Boone County and named as defendants DNR and the truck driver. Id. at 902. The issue 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. This Court noted that when a state agency is the sole defendant and there is no otherwise applicable special venue statute, section 508.010(1) applies and renders Cole County as the only proper venue. Id. at 903. However, because the plaintiff filed suit against DNR and a truck driver employed by DNR, this Court held that section 508.010(2) was applicable because there were multiple defendants residing in different counties. Thus, venue was proper in either Cole County, where DNR is located, or in Boone County, where the truck driver resided. Id.

Dr. Edwards argues that Roper is dispositive because this case involves multiple defendants and section 508.010(2) provides that venue is proper in any county in which a co-defendant resides. Roper is distinguishable. The defendant truck driver in Roper was an agency employee who did not possess official discretionary decision making authority. In contrast, the defendants in this case are members of a state board with official discretionary duties to investigate and bring charges against licensed chiropractors statewide. Accordingly, this case is analogous to the line of cases holding that venue in “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. Spradling v. Bondurant, 501 S.W.2d 527, 529 (Mo.App. W.D.1973).

Pursuant to article IV, section 12 and article IV, section 20 of the Missouri Constitution, the Board maintains its registered offices in Cole County. Because the Board cannot be “found” in Jackson County, the circuit court did not err in transferring the case to Cole County.³

CONCLUSION

Venue was proper in Cole County under the general venue statute because the defendants were members of a state board with discretionary decision making power. Section 381.100.5 supersedes common law quasi-judicial immunity and permits suits against the Board for gross negligence. Dr. Edwards failed to state a claim for malicious prosecution against the Board employee because he failed to allege that the Board employee initiated or conducted her investigation with malicious intent.

The judgment is reversed, and the case is remanded. With respect to the claims against the Board employee, on remand, the trial court shall dismiss those claims without prejudice.

PRICE, LIMBAUGH, RUSSELL, and WOLFF, JJ., and BARNEY, Sp.J., concur. STITH, C.J., concurs in part and dissents in part in separate opinion filed. BRECKENRIDGE, J., not participating.

1 . All statutory citations are to RSMo 2000.

2 . "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). "The 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).

3 . The Board employee resides in Boone County. This fact has no bearing on the issue of venue because she was a resident of Boone County, not Jackson County. Thus, in any event, Jackson County is not a proper venue.